Citation Nr: 21001516 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-04 260 DATE: January 8, 2021 ORDER Entitlement to service connection of the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in May 2008. 2. The Veteran’s primary cause of death was malignant melanoma. The Veteran’s secondary cause of death is stated as lung cancer; however, evidence demonstrates that this was not primary lung cancer, but malignant melanoma metastasized to the lungs. 3. At the time of the Veteran’s death, his service-connected disabilities included osteoarthritis of the lumbar spine, left lower extremity radiculopathy, right lower extremity radiculopathy, and 4. The Veteran’s cause of death was not related to his military service, to include exposure to herbicide agents and radiation, nor was his cause of death related to a service-connected disability. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran’s death. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1113, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from February 1953 to March 1973. The Veteran is a Korean Conflict and Vietnam Era Veteran who also served during Peacetime. The Veteran died in May 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. This case was previously before the Board in June 2017, December 2017, January 2019, November 2019, and July 2020. In June 2017, the Board remanded the case to obtain outstanding VA and private treatment records, afford the appellant the opportunity to provide subjective statements on behalf of her case, obtain a VA opinion concerning the nature and etiology of the cause of the Veteran’s death, and readjudicate the issue on appeal. The Agency of Original Jurisdiction (AOJ) issued the appellant a development letter in June 2017, seeking identification of private physicians that treated the Veteran and affording the appellant the opportunity to provide VA with lay statements in support of her claim. Lay statements in support of the claim were obtained and associated with the file. In August 2017, a VA opinion was obtained and a Supplemental Statement of the Case (SSOC) was issued. In December 2017, the Board denied the appellant’s claim for service connection for the cause of the Veteran’s death. The appellant timely appealed the Board’s decision to the Court of Appeals of Veterans Claims (Court). In June 2018, the Veteran’s representative and a representative from VA’s office of general counsel (OGC) entered into a Joint Motion for Remand (JMR), citing insufficient reasons and bases for their denial. In July 2018, the Court issued an order granting the JMR, vacating the December 2017 Board decision and remanding the issue for readjudication. In January 2019, the Board remanded the matter to obtain a dose estimate for the Veteran’s in-service radiation exposure and to obtain a VA opinion. Radiation exposure data was requested from the Air Force in January 2019. The appellant was afforded the opportunity to submit a Radiation Risk Activity information concerning the Veteran’s exposure to radiation while in-service. A radiation exposure log was received from the Air Force in May 2019. An VA opinion was obtained in August 2019, and an SSOC was issued to the Veteran in September 2019. In November 2019, the Board remanded the claim to afford the appellant the opportunity to submit a Radiation Risk Activity sheet and a new estimated exposure determined. If the resulting estimated exposure was greater than zero, the information was to be sent the Under Secretary for Benefits to obtain an opinion as to it was at least as likely as not that the Veteran’s cause of death was causally related to radiation exposure. In January 2020, the appellant was sent a Radiation Risk Activity sheet, which was not returned. As there was no updated information, and the prior estimated exposure was zero, no opinion was sought from the Under Secretary for Benefits. Nevertheless, in July 2020, the claim was remanded to obtain a dose estimate from the Under Secretary for Health and obtain a dose estimate and then refer the case to the Under Secretary of Benefits for review. The dose estimate was received, and this information was provided to the Director of Compensation Services, who provided the requested opinion in September 2020. The case has been returned to the Board for appellate consideration. Based upon the record presently before the Board, the Board finds that the directives of the prior remand have been substantially complied with. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with terms of a Board remand is required pursuant to Stegall, 11 Vet. App. at 268). The Board has considered the appellant's claim and decided entitlement based on the evidence or record. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Dependency and Indemnity Compensation benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. A Veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran's death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production 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. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In this case, the Veteran died in May 2008. According to his death certificate, the primary cause of death was malignant melanoma with lung cancer as a secondary cause of death. See Certification of Death, dated May 2008. The Veteran’s treatment physician, however, clearly stated that the malignancies present in the Veteran’s lungs was a metastases of the Veteran’s malignant melanoma and was not primary lung cancer. See Private Treatment Records, dated March 2008, February 2008. The findings of the VA examiners are consistent and concurred with this finding. See VA Examination, dated August 2019, August 2017. At the time of death, the Veteran was service-connected for osteoarthritis of the lumbar spine, left lower extremity radiculopathy, right lower extremity radiculopathy, and healed fracture of the left ulna and radius. The Veteran was not service-connected for either the principal cause of death (malignant melanoma) or the secondary cause of death (malignant melanoma metastasized to the lungs). The Board, therefore, must decide whether the Veteran’s malignant melanoma was caused by his military service, or was caused or aggravated by his service-connected disabilities. The Board finds that, based upon the evidence of record, the preponderance of the evidence is against this claim. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Regulation also provide that the Veteran may be awarded secondary service connection for disabilities caused or aggravated by service-connected disabilities. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Finally, regarding exposure to herbicide agents, the law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Similar provisions exist for presumptive service connection of specific illnesses caused by in-service exposure to radiation. 38 C.F.R. § 3.309(d). The Veteran had service in the Republic of Vietnam and, as such, exposure to herbicide agents is conceded. See Military Personnel Records. Malignant melanoma, however, is not among the list of presumptive diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). While respiratory cancers are among the list of presumptive diseases associated with exposure to herbicide agents, as outlined above, the Veteran’s pulmonary malignancies were not primary lung cancer, nor any other respiratory cancer; rather, his lungs contained metastases of malignant melanoma. Accordingly, the presumptive regulations regarding exposure to herbicide agents do not apply to this appeal. Similarly, while there is evidence that the Veteran was occasionally exposed to radiation due to his duties, malignant melanoma is not among the disease afforded presumptive service connection as due to exposure to radiation. 38 C.F.R. § 3.309(d). While lung cancer is among the diseases afforded presumptive service-connection, as outlined above, the malignancies found in the Veteran’s lungs were not pulmonary in nature, but malignant melanoma, and, as such, the presumptive regulations regarding exposure to radiation exposure do not apply to this appeal. With regard to direct service connection, there is evidence of in-service events insofar as the Veteran was exposed to herbicide agents and radiation during his military service. 38 C.F.R. § 3.303; see Shedden, 381 F.3d 1163. The evidence of record, however, weighs against a finding that there was a causal link, or nexus, between the Veteran’s cause of death or either his exposure to herbicide agents or radiation while in service. Id. Specifically, the August 2019 VA examiner opined that it was less likely as not that the Veteran’s malignant melanoma was incurred in service, or that it was caused by the Veteran’s service, including exposure to herbicide agents. The examiner noted that the Veteran was diagnosed with melanoma more than 35 years after his separation from the military. Moreover, exposure to herbicide agents was not a known risk for development of malignant melanoma. Given this, the examiner found that the evidence did not support a nexus between the two. This is consistent with the findings of the August 2017 VA examiner. There is no competent medical, objective evidence to support the finding that the Veteran’s malignant melanoma was incurred in service, or that it was caused by exposure to herbicide agents during service. 38 C.F.R. § 3.303. As the VA examiner is a medical professional, competent to opine as to etiology of the Veteran’s melanoma, there is no evidence that the examiner lacks credibility, and the opinion is consistent with the evidence of record, the Board assigns this evidence significant probative weight. The Board has also considered whether the Veteran’s occasional exposure to radiation was causative of his metastatic melanoma. The dose estimate, performed by the Environmental Health Program, found that the Veteran’s exposure was not more than occasional, as he was monitored only once during his service. This exposure was equated to 0.1 Roentgen equivalent man (rem) per year. See Memorandum, dated September 2020. As the Veteran served 17 years, this equated to 1.7 rem of lifetime exposure. Health effects have been found in individuals with lifetime exposure to radiation in high-dose exposure (in excess of 10 rem over a lifetime); however, health effects of those with exposure levels consistent with the Veteran’s exposure are not, statistically, greater than the health effects of those not exposed at all. This was relied upon by the Director of Compensation when finding that the Veteran’s radiation exposure was not the cause of the Veteran’s malignant melanoma. 38 C.F.R. § 3.303 In light of the above, the Board finds that a preponderance of the evidence is against finding that the Veteran’s cause of death was incurred in service, or that it was caused by his military service, to include exposure to herbicide agents and radiation. The Board has considered the statements of the appellant and the Veteran's step-son, asserting that the Veteran’s cancer could be attributable to herbicide agent exposure, including being so advised by his doctors. See Statements in Support of Claim, dated July 2017. The Board has also considered the statement of the Veteran’s granddaughter, testifying to the deterioration that the Veteran’s function suffered due to his cancer diagnosis and progression. See Buddy Statement, dated July 2017. The Board is sympathetic to the appellant her family, and does not doubt that the Veteran’s condition deteriorated significantly during the course of his disease. None of the family members, however, have demonstrated the medical expertise to opine as to the etiology of the Veteran’s melanoma, nor is there supporting evidence consistent with their recollection of physician’s statements, in spite of the appellant being afforded opportunities to submit evidence in support of her claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the medical records are silent for a positive nexus opinion between the Veteran’s service, including exposure to herbicide agents or radiation. In light of the above, the assertions of the appellant, the Veteran's stepson, and the Veteran’s granddaughter are afforded less probative weight than the VA examiner and radiation exposure opinion. As a final matter, the Board has considered the possibility of whether the Veteran’s cause of death was caused or aggravated by his service-connected disabilities. The August 2019 VA examiner opined that there is no known way for the Veteran’s service-connected disabilities to materially contribute to the Veteran’s death or aid in the Veteran’s death. Moreover, there is no competent evidence, lay or medical, supporting such causation or aggravation, nor has it been asserted by the appellant. As such, the evidence is against finding for secondary service connection for the Veteran’s cause of death. 38 C.F.R. § 3.310. While the Board sympathetic to this appellant and her family, and is grateful for the Veteran's honorable service, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.