Citation Nr: 21071132 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-39 700 DATE: November 29, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The immediate cause of the Veteran's death was cardiorespiratory failure due to melanoma. 2. At the time of the Veteran's death, service connection was not in effect for a disability. 3. None of the disabilities causing or contributing to the Veteran's death were present in service, or within a year following discharge from service, and they are not shown to be related to his military service. 4. At the time of his death, the Veteran was not receiving, nor was he entitled to receive, compensation for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.5, 3.303, 3.304, 3.312. 2. The criteria for Dependency and Indemnity Compensation under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1966 until his honorable discharge in August 1968. He served in Vietnam for nine months and seventeen days. He was the recipient of the Vietnam Service Medal and the Purple Heart. The Veteran died in 2003, and the appellant is the Veteran's surviving spouse. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision by the Milwaukee, Wisconsin, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In February 2020, the appellant testified at Board hearing before the undersigned Veterans Law Judge. In March 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain a medical opinion addressing whether the Veteran's melanoma, identified as a cause of the Veteran's death, was as likely as not caused by his presumptive exposure to herbicide agents while serving in Vietnam. The VA Regional Office accomplished this directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. 1. Service Connection for the Veteran's cause of death Dependency and Indemnity Compensation (DIC) is a tax-free monthly benefit paid to eligible survivors of military servicemembers who died in the line of duty or eligible survivors of veterans whose death resulted from a service-related injury or disease. Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability after December 31, 1956. See also 38 C.F.R. § 3.5. The Veteran need not be service connected for the claimed disability at the time of death. DeLaRosa v. Peake, 515 F.3d 1319, 1323 (Fed. Cir. 2008); Patricio v. Shulkin, 29 Vet. App. 38, 44 (2017). It is sufficient if a nonservice-connected disability (on which a DIC claim is based) is later determined to be incurred in or aggravated by active military service, such that it would have been service connected. See generally id. "[I]ssues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime." 38 C.F.R. § 20.1106. Thus, the Board must consider service connection for relevant conditions anew, even if service connection was denied during the veteran's life. Id. Generally, service connection requires evidence of (1) a current disability, (2) an 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. 38 C.F.R. § 3.303(a); See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA regulations state that "[t]he death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such 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 the "principal" or "primary" cause of death when "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 one "not inherently related to the principal cause." 38 C.F.R. § 3.312(c)(1). A service-connected disability is a contributory cause of death when the disability is shown to have: (1) "contributed substantially or materially" to the cause of death, (2) "combined to cause death," or (3) "aided or lent assistance to the production of death." Id. "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.; see also 38 C.F.R. § 3.312(c)(3) (service-connected disease involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, raising the question whether there were debilitating effects and general impairment of health that would render the person materially less capable of resisting the effects of the disease causing death); 38 C.F.R. § 3.312(c)(4) (consider whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death). Accordingly, the Board must engage in a multi-step inquiry to resolve the claim for DIC under 38 U.S.C. § 1310. First, the Board must determine the Veteran has a service-connected disability on which the DIC claim is based. If not, then the Board must determine whether the disability on which the claim is based could be service connected. If so, the Board must determine if the (non-)service-connected disability was the primary cause or a contributing cause of the Veteran's death. Analysis According to the Veteran's death certificate, the immediate cause of his death was "cardio-respiratory failure." A subsequent condition that led to the immediate cause of death was "melanoma." The Board observes that the instruction on the death certificate informed the coroner not to list "the mode of dying such as cardiac or respiratory arrest or heart failure." This will be important later on within the analysis. The appellant raises two theories for service connection for the Veteran's death. First, the appellant asserts that the Veteran's coronary artery disease, which is presumed to have developed due to conceded herbicide agent exposure in Vietnam, was a primary or contributory cause of his death. Second, she asserts that exposure to herbicide agents caused the Veteran to develop melanoma, which resulted in his death. The Board addresses each theory in turn. For the reasons that follow, the Board concludes that service connection for the cause of the Veteran's death is not warranted. Coronary Artery Disease At the time of his death, the Veteran was not service connected for coronary artery disease, ischemic heart disease, or another similar disease. Thus, the Board must determine whether service-connection for such heart diseases could have been service-connected. Service connection First element: A current disability The appellant submitted the Veteran's medical records in July 2012. One of these records was an April 2001 private cardiology consultation from Dr. R.M. He documented that the Veteran's past medical history included "valvular heart disease" as interpreted by another private physician. Following an evaluation, Dr. R.M. diagnosed the Veteran with "valvular heart disease consisting of mild [aortic insufficiency], mild [mitral regurgitation], and mild [tricuspid regurgitation]." Dr. R.M. obtained an opinion from Dr. R.F., a cardiologist, who conducted a Cardiolite stress test on the Veteran. Dr. R.F. opined that the Veteran had "mild inferior ischemia." Based on this credible and probative evidence, the Board finds the Veteran had valvular heart disease and/or mild ischemic heart disease at the time of his death. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran served in Vietnam at some point between 1966 and 1968, but the exact dates are unclear from his military records. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The "Vietnam era" is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). The Veteran's service in Vietnam requires that VA presume he was exposed to herbicide agents. Therefore, the second element, an in-service event, is satisfied. Third element: A causal link If a veteran who was exposed to herbicide agents during service in the Republic of Vietnam during the Vietnam era develops certain diseases to a particular degree, as listed in 38 C.F.R. § 3.309(e), then such diseases are presumed to be due to the Veteran's herbicide agent exposure. 38 U.S.C. § 1116. Consequently, a direct medical nexus is not required. Ischemic heart disease is one of the listed diseases for which service connection may be presumptively granted. Therefore, VA is required to presume that the Veteran's mild inferior ischemia, but not his valvular heart disease (as valvular heart disease is not a listed disease), was due to his exposure to herbicide agents. Accordingly, service connection is warranted for the Veteran's mild inferior ischemia (ischemic heart disease). Cause of Death Having determined the Veteran's ischemic heart disease was subject to service connection, the Board now turns to the question of whether his ischemic heart disease was a principal or contributory cause of his death. The Board initially obtained a July 2012 VA physician's opinion as to whether the Veteran's ischemic heart disease, also referred to as coronary artery disease, at least as likely as not (50 percent or greater probability) substantially or materially contributed to the Veteran's cause of death; or, whether it combined to cause death; or, whether it aided or lent assistance to the production of his death? The examiner reviewed the Veteran's VA claims file and opined that "the Veteran's death was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury of ischemic heart disease as a result of service in Vietnam." The examiner also opined that "the Veteran's ischemic heart disease (coronary artery disease) did not at least as likely as not (50 percent or greater probability) substantially or materially contribute to the Veteran's cause of death nor did it combine to cause death, nor did it lend assistance to the production of death." The examiner first noted that "the Veteran's death certificate indicates that he died at his residence of 'natural causes' due to the immediate cause of 'Cardiorespiratory Failure' due to 'Melanoma.'" The Veteran's death certificate did not mention that the Veteran died of coronary artery disease or any other valvular heart disease. The examiner explained, "The mention of cardiorespiratory failure simply indicates that in the process of dying, the Veteran's heart and lungs stopped working which is simply what death is." This is significant to the Board because, as mentioned earlier, the instruction on the death certificate informed the coroner not to list "the mode of dying such as cardiac or respiratory arrest or heart failure." Thus, apart from the cited melanoma, the Veteran's death was not associated with any particular, or general, heart disease. The Board finds the July 2012 examiner's opinion and analysis highly credible and probative. The examiner provided a good description of the Veteran's medical history, particularly as it related to his heart conditions. But she did misstate some of the dates associated with his treatment. These misstatements are not detrimental to the foregoing analysis offered by the examiner in relation to the Veteran's causes of death as listed in his death certificate because they do not affect the cause of death listed on the certificate. Nonetheless, the Board observes that the claimant submitted additional medical records following the July 2012 examiner's opinion. Importantly, the examiner opined that the Veteran did not have a diagnosis of ischemic heart disease, or coronary artery disease, based on the medical records contained within the claims file at the time she rendered the opinion. The additional medical records submitted after the opinion contained a diagnosis of inferior heart ischemia, which subsequently rendered the remainder of the July 2012 examiner's opinion inadequate. Thus, the Board finds no probative value in the opinion beyond the discussion as to the Veteran's listed cause of death in his death certificate. The VA Regional Office obtained an addendum opinion in August 2012 from the same examiner who considered the new medical records in addition to all other evidence in the claims file. She opined that the Veteran's "ischemic heart disease (coronary artery disease) did not at least as likely as not (50 percent or greater probability) substantially or materially contribute to the Veteran's cause of death nor did it aid or lend assistance to the production of death." She again noted that the Veteran's cardiorespiratory failure, as listed on his death certificate, "merely and simply means that at the time of his death, his heart and lungs stopped working due to his stage IV melanoma that was widely metastatic for which he required palliative cranial radiation and other treatment." There was no relation to a heart condition, to include ischemic heart disease. The examiner considered the severity of the Veteran's ischemic heart disease. She noted that two stress test results were available for review, one in August 2000 and another in April 2001. She opined that at the time of his diagnosis, his ischemic heart disease was "non-critical." This signified that it did not likely result in his death. While the Veteran received medical management for his heart related conditions, to include his ischemic heart disease, the examiner found "no available [medical evidence] to document that his ischemic heart disease substantially, materially contributed to his death, nor did it aid or lend assistance to the production of his death." For example, the examiner cited a lack of evidence of unstable angina requiring hospitalization, of percutaneous coronary intervention, of coronary artery bypass grafting, and of any discussions or concerns from a healthcare provider about his ischemic coronary artery disease becoming critical in nature. The examiner concluded that, at the time of the Veteran's death, his ischemic heart disease was likely still "mild inferior ischemia" as outlined by the April 30, 2001 nuclear medicine stress test. Therefore, his death was not caused by his ischemic heart disease based on the severity of the disease. The Board finds the August 2012 opinion highly credible and probative. She thoroughly reviewed the Veteran's medical history, considered the new medical records submitted by the appellant, and provided a thorough analysis of the Veteran's ischemic heart disease from the point of diagnosis to the Veteran's death. Significant ot he Board, the examiner discussed how the severity of the disease was likely the same at the time of the death as at the time of diagnosis based on medical evidence of record. The examiner's opinion is supported by adequate rationale, particularly as she discussed evidence she would have expected to see within the Veteran's medical records, such as certain treatment and concerns noted by treating professionals, in order to support the assertion that his heart disease in some way contributed or caused his death; but no such evidence existed. The Board finds no other credible evidence of record that contradicts the examiner's rationale or conclusions. Accordingly, the Board finds that the Veteran's ischemic heart disease did not cause the Veteran's death, either as a primary or contributing cause. Therefore, service connection for DIC benefits is not warranted under this theory. Melanoma At the time of his death, the Veteran was not service connected for melanoma, or another similar disease. Thus, the Board must determine whether the Veteran could have been service connected for melanoma. Service connection First element: A current disability The Veteran's private medical records clearly document a diagnosis of melanoma that progressed in severity, resulting in resections in May 2000 and May 2001. Unfortunately, his melanoma progressed to Stage IV. The Board is satisfied that this evidence meets the first element. Second element: An in-service event, injury, or illness, or aggravation thereof As previously discussed, the Veteran is a Vietnam era veteran with service in Vietnam. Thus, he is presumed to have been exposed to herbicide agents, which constitutes an in-service event. In addition, the claimant asserts the Veteran's exposure to the sun during his time in service may have also led to his melanoma. The Board finds each asserted in-service event sufficient to meet the second element. Third element: A causal link The VA Regional Office obtained a medical opinion from a VA-contracted examiner in December 2020 addressing the Veteran's melanoma as it related to his active service and his cause of death. The examiner reviewed the documents associated with the Veteran's claims file. He acknowledged the Veteran had been diagnosed with melanoma with metastasis at the time of his death. He cited risk factors associated with an increased risk for melanoma included a history of sunburn, fair skin, excessive UV light exposure, living closer to the equator or at a higher elevation, moles, family history, and a weakened immune system. On review of the Veteran's in-service medical records, the examiner found no evidence indicating a diagnosis of, or treatment or symptoms associated with, melanoma while on active service or within one year of separation from service. The examiner opined that, based on literature review, malignant melanoma is not currently linked with exposure to herbicide agents, include Agent Orange. Therefore, the examiner concluded that the Veteran's melanoma was not caused by herbicide agent exposure in Vietnam. The Board finds the examiner's opinion credible and probative. The examiner's opinion sufficiently connected his cited data and facts with his conclusion. The Board does not find credible evidence in the record contradicting the examiner's statements or ultimate conclusion. Therefore, the Board finds that the evidence weighs against the claim that the Veteran's melanoma was due to his exposure to herbicide agents in service. Accordingly, service connection is not warranted on this theory. The examiner also discussed the Veteran's sun exposure in service. He stated that "sun exposure is the most important environmental cause of skin cancer . . . and most risk factors relate directly to a person's sun exposure habits or susceptibility to solar radiation." He cited risk factors that included having fair skin, light-colored eyes, red hair, northern European ancestry, older age, childhood freckling, and an increased number of past sunburns. Although "the type, quantity, and timing of sun exposure associated with an increased risk of [skin cancer] are not clearly defined[,] [c]hildhood sun exposure appears to be more important than exposure during adult life." The examiner based these factual statements on knowledge of results from controlled case studies and clinical trials. In this case, the examiner found that the Veteran's sun exposure while on active duty represented 0.01% of his lifetime sun exposure and did not contribute to the development of melanoma. The Board notes that examiners have no reasons-and-bases requirement; their opinion is adequate if it rests on correct facts and reasoned medical judgment to fully inform the Board on a particular medical question. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). An examiner does not have to discuss every medical treatise relevant to a claim, nor speculate as to other possible etiological theoriesan examiner is only required to offer rationale that supports his/her opinion after review of the veteran's medical history. Id.; see also Monzingo v. Shinseki, 26 Vet. App. 97, 10506 (2012) (finding no clear error when a medical examiner "did not explicitly lay out [her] journey from facts to a conclusion."). The Board finds that the examiner adequately considered the Veteran's time he spent on active-duty service in relation to his age at the time of separation of service. He logically concluded that his sun exposure while on active duty was relatively minimal, quantifying it as 0.01% of the Veteran's total lifetime sun exposure, which the Board finds is reasonable. Absent evidence reasonably suggesting that the Veteran's melanoma was due to the particular sun exposure he experienced in service, any conclusion that his melanoma was due to his active-service sun exposure would be speculative at best. The Board finds the examiner's ultimate conclusion, that the Veteran's in-service sun exposure did not contribute to the development of melanoma, is credible and probative in light of the cited risk factors that the examiner considered. Therefore, the Board finds that the evidence weighs against the conclusion that the Veteran's melanoma was due to his sun exposure during active military service. Accordingly, as the evidence of record weighs against finding a causal link between the Veteran's melanoma and active military service, service connection cannot be granted. Cause of Death Although one of the causes of the Veteran's death listed on his death certificate was melanoma, the Board cannot grant service connection for the cause of death because the Veteran's melanoma could not be service connected. Accordingly, service connection for the cause of death, as due to melanoma, is not warranted. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318 and 38 C.F.R. § 3.22, VA will pay DIC benefits to the surviving spouse or child(-ren) in the same manner as if the veteran's death were service-connected, if: (1) The veteran's death was not the result of his or her own willful misconduct, and (2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) Rated by VA 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. 38 C.F.R. § 3.22(a) (enabling regulation); 38 U.S.C. § 1318 (statutory authority). Pursuant to 38 C.F.R. § 3.22(b), "entitled to receive" means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because: (i) VA was paying the compensation to the veteran's dependents; (ii) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (iii) The veteran had not waived retired or retirement pay in order to receive compensation; (iv) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (vi) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. (Continued on the next page) "Rated by VA as totality disabling" includes total disability ratings based on individual unemployability (TDIU). 38 C.F.R. § 3.22(c). In this case, there is no evidence that the Veteran's death was the result of his or her own willful misconduct, which satisfies the first element. Nevertheless, the Veteran was not receiving, nor is there evidence that he was entitled to receive, compensation for a service-connected disability meeting the criteria within 38 C.F.R. § 3.22(a). Therefore, an award of DIC benefits under 38 U.S.C. § 1318 is not warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.