Citation Nr: 21063873 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-14 446 DATE: October 18, 2021 ORDER Entitlement to service connection for cause of death, to include as exposure to herbicide agents, is granted. Entitlement to Dependent Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran passed away in June 2005. His death certificate noted multiple brain intercerebral tumors as the immediate cause of death; conditions leading to the immediate cause of death were metastatic melanoma and metastatic lung carcinoma. He was not service-connected for any disability at the time of his death. 2. Brain tumors and melanoma are not conditions entitled to presumptive service connection under 38 C.F.R. § 3.309(e); although lung cancer is an enumerated condition, the Veteran's lung cancer was a metastasis from his melanoma, and not a primary disease. 3. The record does not suggest that the Veteran was diagnosed with or treated for malignant tumor in service or within one year of service, or that he had symptoms since service. 4. Resolving any doubt in the Veteran's favor, his melanoma is at least likely as not related to his exposure ultraviolet (UV) radiation and, in part, herbicide agents during his service in the Republic of Vietnam. 5. At the time of his death, the Veteran was not in receipt of, nor entitled to receive, compensation for a service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970, including service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2010 and February 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2005, the Veteran passed away. The Appellant is the Veteran's widow. This matter was previously before the Board in June 2018, at which time the Board remanded for further development. The Board denied the claim in a March 2020 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a joint motion for remand (JMR), vacating and remanding the March 2020 decision for compliance with the JMR. The Appellant testified at a September 2017 hearing before a Veterans Law Judge (VLJ) who has since retired. In September 2021 correspondence, the Appellant's attorney indicated another hearing in this matter is not desired. Accordingly, the Board will proceed with the appeal. 1. Entitlement to service connection for cause of death, to include as exposure to herbicide agents, is granted. The Appellant asserts that her husband died from lung cancer that metastasized to his brain due exposure to herbicide agents in the Republic of Vietnam. See October 2010 VA Form 21-4138. The Appellant additionally argues that the Veteran's melanoma that caused his death is at least as likely as not related to his exposure to the sun and herbicide agents. See September 2021 Appellate Brief. Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases are deemed service-connected. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that in-service exposure to herbicide agents led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran died in June 2005; the immediate cause of death listed on his death certificate is "multiple brain (inter cerebral) tumors," and the condition leading to the immediate cause of death was "multiple melanoma." In a July 2015 supplement to the Veteran's death certificate, "lung carcinoma (metastatic)" was added as a condition leading to the cause of death. At the time of his death, the Veteran did not have any service-connected disabilities. The Veteran's Form DD-214 shows that he served in Vietnam from November 1968 to October 1969. Thus, his exposure to herbicide agents, including Agent Orange and Agent Blue (cacodylic acid), is conceded. 38 C.F.R. §§ 3.307(6)(i). The remaining question is whether the Veteran's brain tumors, melanoma, or lung carcinoma are related to his service. The Veteran's service treatment records are generally silent for any brain, skin, or lung conditions. A September 1968 record noted hyperhidrosis of his feet. A January 1969 record noted tinea pedis. He was found normal at his April 1970 separation exam without any indication of brain, skin, or lung issues. After service, a January 2005 private record noted the Veteran has been in reasonably good health until about a month ago. It noted he has developed nausea, vomiting, and headache. Computerized tomography (CT) revealed several tumors in the brain. A subsequent January 2005 record noted metastatic brain tumors with unknown source that is likely from lung cancer based on his history of smoking. It noted workups have been instated for CT of his chest, abdomen, and pelvis, and a magnetic resonance imaging (MRI) of his brain. A January 2005 CT of the chest noted there is noncalcified nodule in the right upper lobe with indeterminate etiology, which could be further evaluated with a positron emission tomography (PET). CT of the abdomen and pelvis were normal. A January 2005 MRI of the brain found multifocal tumor. It noted there are at least four large enhancing lesions. In a January 2005 private record, physical examination showed the Veteran's skin was covered with numerous pigmented moles, some of which were suspected as melanoma. The doctor noted that multiple brain metastases would lend themselves to somewhat of a broad differential diagnosis. He suspected that these may be melanoma from one of his skin lesions with brain metastases. He stated that other primaries, such as colon, pancreas, and lung, are also possible, although CT scans in these areas are not suggestive of this. A February 2005 private record noted the Veteran was seen for multiple suspicious skin lesions. Physical exam revealed irregular pigmented lesion involving the posterior neck; multiple irregular pigmented skin lesions in the trunk; a prominent irregular pigmented lesion over the left anterior abdomen; and an area involving the posterior back that was the largest and the most irregular. The assessment was metastatic brain tumors with unknown primary; multiple biopsies were ordered to rule out malignant melanoma. A February 2005 private brain tumor biopsy found that Melanin-A stain is strongly positive which supports a diagnosis of metastatic melanoma. A February 2005 private record noted the Veteran was recently diagnosed with brain metastatic disease from unknown primary, likely from lung. It noted the Veteran was consulted by a medical oncology team, and that the whole brain radiation was discussed. It wrote the Veteran decided to go home without brain radiation treatment, and the chart was closed. An April 2005 CT of the chest noted a rounded non-calcified mass in the right upper lobe and a faint nodule in the right lower lobe. The doctor noted the etiology of the nodules was indeterminate, and that metastatic disease was possible. An April 2005 PET scan noted that high metabolic activity in a singular lesion in the right upper lobe is felt to represent a probable metastasis to the lung, and that it corresponded to a nodule seen on a recent CT of the chest. An April 2005 whole body scan noted possible metastasis to the ribs. The Veteran's June 2005 death certificate noted he died in June 2005 with immediate cause of multiple brain inter cerebral tumors; the condition leading to the immediate cause of death was multiple melanoma. A July 2015 supplement added metastatic lung carcinoma as a condition leading to the cause of death. In an April 2014 letter, Dr. P. stated that the Veteran died from metastatic melanoma which spread to his brain, lung, ribs, and extremities. Dr. P. stated that "Agent Orange has been linked to cancer and could be the cause of his fatal cancer." No rationale was provided. In an April 2014 letter, Dr. M. noted he has reviewed the Veteran's chart from different establishments. It noted that the Veteran passed away from complications of metastatic melanoma involving the brain, lungs, and bone. He noted that the pathology was from his brain biopsy which showed he had evidence of malignancy in his lungs. In a subsequent October 2016 letter, Dr. M. further stated that there is a greater than 50 percent probability that the origin was lung cancer, and much less likely that it was melanoma. In a November 2016 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's sun exposure in South East Asia resulted in the melanoma as indicated in the medical records. The examiner explained that the cumulative sun exposure that the Veteran may have received during the short period he served in Vietnam is significantly less as compared to the cumulative sun exposure that the Veteran may have received during rest of his life. He noted that it is the cumulative sun exposure that determines the risk of developing malignant melanoma over the lifetime, and that risk is much lower from the period that he spent in Vietnam versus rest of his life. The examiner also opined that it is less likely than not that the Veteran had a primary lung cancer. He explained that despite the fact that this Veteran was a heavy smoker, there is no evidence that he was ever diagnosed with a primary lung cancer. He noted that the pathology report on the metastatic cancer clearly shows the origin of the tumor was a malignant melanoma, and not a lung cancer. The examiner lastly commented that upon review of the service treatment records, there was no evidence of any disease or condition related to military service which at least as likely as not contributed to the Veteran's death. In an August 2019 VA medical opinion, the examiner opined that it is less likely as not that the Veteran's brain tumors, metastatic melanoma, and lung abnormality were causally or etiologically related to the Veteran's active service, to include the conceded exposure to herbicide. The examiner explained that the Veteran was diagnosed with metastatic melanoma from a brain biopsy. He noted that CT chest and PET scans revealed a probable right upper lobe lung metastasis, and a whole body scan suggested possible metastasis to the ribs. He noted the Veteran passed away from metastatic melanoma to his brain. He explained that melanoma is the most serious form of skin cancer and the sixth most common cancer in North America. He stated melanoma has the potential to metastasize to any organ, and common sites of dissemination included the skin, subcutaneous tissues, lymph nodes, lungs, liver, bone, brain, and visceral organs. He stated that most melanomas arise as superficial tumors that are confined to the epidermis in skin, and that melanoma can metastasize from skin to brain, lung, and bone, as is more likely as not in this case. He commented that primary melanoma of the lung is an extremely rare pathological entity and sparsely reported in the literature, and is, therefore, less likely as not in this case. He added that malignant melanoma is not recognized by the VA as a disease associated with Agent Orange exposure, and that per "Veterans and Agent Orange: Update 11 (2018)" and prior reports, there was inadequate or insufficient evidence to determine whether there is an association between exposure to Agent Orange and melanoma. The examiner also noted that the Veteran's right upper lobe lung abnormality was never biopsied or proven to be a cancer; it is more likely as not, however, that the right upper lobe lung lesion was also a malignant melanoma that had metastasized to his lung, just as his melanoma had metastasized to his brain. In a September 2017 statement, the Appellant stated that when the Veteran talked about arriving in Vietnam, he described how the first breath of that incredibly hot air almost knocked him over. He reported that the area he was stationed in first was a dead desert area, which had already cleared all the dead vegetation. She said he told her about getting horrible sunburns in Vietnam that would blister. She stated he told her that other guys in his unit would talk around all day with no shirts on because the heat was unbearable. She stated he said it took a long time for his skin to stop peeling and to darken. She stated him growing up with so little sun exposure just made it worse for him. In September 2021, a private opinion was received from Dr. K., an oncologist. Dr. K. noted that he has personally reviewed the Veteran's claims file in its entirety. Dr. K. noted that according to the Appellant, the Veteran experienced severe blistering sunburns during service and returned home following service with notably darkly tanned skin, in contrast to his paleness upon entry. He noted that UV radiation from sun exposure is a known class I human carcinogen and a proven cause of melanoma in human epidemiologic studies. He noted that without exception, the consensus from medical references list UV exposure as the single most common cause of skin cancers including melanoma. He noted that multiple epidemiologic studies specifically identify military personnel with higher rates of skin cancers including melanoma due to their outdoor duties compounded by the lack of available protection. He stated that, notably, conceded herbicides include Agent Blue which contains human carcinogen arsenic. He stated that arsenic is shown to amplify the carcinogenic effects of UV radiation exposure tenfold, leading to skin cancers. He wrote the latency for UV-caused melanoma was on average 31 years, which was entirely consistent with the Veteran's latency timeline of approximately 36 years. He noted that the Veteran was Caucasian, blond, and of fair skin, making him most susceptible to the carcinogenic effects of UV exposure. He noted that the Veteran's only risk factor was a family history with one of his siblings dying from melanoma, but that he had none of the other risk factors; nothing in his VA claims file indicated that he was immunosuppressed, carried any rare genetic disorders associated with melanoma, or ever used indoor tanning beds. Dr. K. noted that while he is in partial agreement with the November 2016 and August 2019 VA examiners' opinions which conclude correctly that the Veteran's primary cancer was melanoma that metastasized to his brain and lungs, he was in complete disagreement with the November 2016 examiner's opinion that the Veteran's risk of developing melanoma due to his sun exposure in Vietnam was significantly less than his cumulative sun exposure throughout his life. He also disagreed with the August 2019 examiner's opinion that herbicides played no role in melanoma, as he never mentioned the herbicide of relevance, namely Agent Blue which contains Arsenic, known to sensitize skin to the carcinogenic effects of UV radiation. Dr. K. concluded that he is persuaded to a high degree of confidence, based upon a reasonable degree of medical certainty and scientific probability, that the Veteran's diagnosis of melanoma and cause of death from metastatic melanoma were at least as likely as not caused by his exposure to UV radiation from his military service in Vietnam, which was amplified by his exposure to arsenic within Agent Blue. Initially, the Board has considered whether presumptive service connection was warranted under 38 C.F.R. § 3.309(e). Specific diseases are presumed due to service if they become manifest in an herbicide-exposed veteran. However, brain tumors or melanoma are not among the list of the diseases presumed due to herbicide exposure. 38 C.F.R. § 3.309(e). Further, while lung cancer is one of the enumerate diseases, the Veteran's lung cancer was a metastasis of his melanoma, and not a primary cancer. See April 2005 CT and PET notes; November 2016 and August 2019 VA opinions; September 2021 opinion from Dr. King. Therefore, service connection is not warranted based on being a disease presumed to be related to the conceded herbicide exposure. Certain chronic diseases, such as malignant tumor, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 C.F.R. §§ 3.307(a)(3), 3.309 (a). Service connection on the basis of continuity of symptomatology can also be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, it has not been asserted, and the evidence does not suggest, that the Veteran was diagnosed with or treated for malignant tumor in service or within one year of service, or that he had symptoms since service. Therefore, it may not be presumed that his brain tumor, melanoma, or lung cancer were incurred in service. The Board now turns to whether the evidentiary record establishes entitlement to service connection with proof of actual direct causation, to include on the basis that in-service exposure to herbicide agents led to the development of the brain tumor, melanoma, or the lung cancer after service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board first notes that the April 2014 opinion from Dr. P. is afforded no probative value as he did not provide a rationale. In a November 2016 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's sun exposure in South East Asia resulted in the melanoma because the cumulative sun exposure that he may have received during his service in Vietnam is significantly less as compared to the cumulative sun exposure that he may have received during rest of his life. The August 2019 examiner opined that there is inadequate or insufficient evidence to determine whether there is an association between exposure to herbicides and melanoma. In contrast, in the September 2021 private opinion, Dr. K. opined that the UV radiation from sun exposure is a known class I human carcinogen and a proven cause of melanoma in human epidemiologic studies, and that the consensus from medical references list UV exposure as the single most common cause of skin cancers including melanoma. Dr. K. added that the Veteran's physical condition made him most susceptible to the carcinogenic effects of UV exposure. He further explained that the conceded herbicides include Agent Blue which contains arsenic. He stated that arsenic is shown to amplify the carcinogenic effects of UV radiation exposure tenfold, leading to skin cancers. He further commented that the latency for UV-caused melanoma is on average 31 years, and entirely consistent with [the Veteran's] own latency timeline of approximately 36 years. Given the above, resolving any doubt in favor of the Veteran, the Board finds the evidence to at least be in relative equipoise as to whether the Veteran's exposure to UV and herbicide agents, in combination, during his Vietnam service is related to his melanoma. The Veteran is presumed to have been exposed herbicide agents including Agent Orange and Agent Blue during his service in Vietnam. It is also plausible that he had UV exposure from the sun while there. The competent medical opinions differ with respect to the whether the effect of the Veteran's UV exposure while in Vietnam. The November 2016 VA examiner explained that the cumulative sun exposure the Veteran may have received in Vietnam is significantly less as compared to the cumulative sun exposure that he may have received during rest of his life. On the other hand, Dr. K. explained that the Veteran's physical condition was one that made him most susceptible to the carcinogenic effects of UV exposure, and that consensus from medical literature listed UV exposure as the single most common cause of skin cancers, including melanoma. Dr. K. also added that arsenic in Agent Blue is shown to amplify the carcinogenic effects of UV radiation exposure tenfold, leading to skin cancers, with average latency of approximately thirty years. This is something the VA examiners did not specifically address in their opinions. These opinions were proffered by medical professionals who reviewed the Veteran's service record, pertinent lay evidence, and relevant medical literature. Thus, the Board finds that the competent and probative evidence is at least in equipoise regarding whether the Veteran's melanoma is related to his exposure to herbicide agents and UV radiation. Further, multiple melanoma is noted on the death certificate as a condition leading to the immediate cause of death, in addition to the lung carcinoma. The November 2016 VA examiner, August 2019 VA examiner, and Dr. K. all agreed that it is likely that the Veteran's primary cancer was melanoma that metastasized to his brain and lungs. Accordingly, when all reasonable doubt is resolved in the Veteran's favor, entitlement to service connection for the cause of death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. The Appellant seeks entitlement to DIC benefits under 38 U.S.C. § 1318. Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service-connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling for a period of not less than 5 years from the date of the Veteran's discharge from active duty, or was rated as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war (POW) and died after September 30, 1999. 38 U.S.C. § 1318. In this case, the Appellant does not contend, and military personnel records do not show, that the Veteran was a former POW. At the time of his death, the Veteran was not service-connected for any disability. Finally, he was discharged from active service in 1970 and was not rated as totally disabled for a period of not less than 5 years from the date of discharge. Thus, the legal criteria for DIC under 38 U.S.C.§ 1318 are not met, and entitlement to DIC benefits is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (Continued on the next page) The Board is sympathetic to the Appellant's loss and recognizes the Veteran's honorable service to his country. However, it is bound by the law and regulations governing the payment of VA benefits and regrets that a favorable determination could not be made in this issue. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.