Citation Nr: 21008363 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-33 691 DATE: February 16, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death for purposes of dependency and indemnity compensation (DIC) benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from November 1981 to June 2004. The Veteran died in November 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in June 2013. As an initial matter, the Board notes that nearly all the Veteran’s service treatment records are unavailable for review. Efforts by the RO to obtain service treatment records from all potential sources were unsuccessful. See June 2013 and June 2020 VA Memorandum Formal Finding on the Unavailability Service Treatment Records. As such, the Board recognizes it has a heightened duty to consider the application benefit-of-the-doubt rule when service records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Destruction or loss of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). In August 2018, the Board remanded the appellants claim in an additional effort, though unavailing, to acquire the Veteran’s unavailable service records. Regrettably, additional development is necessary before the appellant’s claim can be adjudicated. Service Connection Cause of Death The appellant seeks service connection for the cause of the Veteran's death for purposes of entitlement to DIC benefits. At the time of his death, the Veteran was not service connected for any disability. The Veteran died in November 2012 and the official death certificate discloses that his immediate cause of death was bilateral acute ischemic strokes, due to or as a consequence of intracranial hemorrhage, due to or as a consequence of metastatic melanoma to the brain. Deep vein thrombosis and hypertension were listed as significant conditions contributing to death. The appellant asserts that the Veteran was diagnosed with, and treated for, hypertension in service. She further asserts that two months prior to his discharge from service, the Veteran requested treatment to determine the nature of a suspicious mark on his back which had been changing in size and shape. The appellant reported that the Veteran was scheduled for a biopsy that was never performed in service due to the Veteran’s pending retirement and TDY orders. The appellant was able to recover a copy of treatment records from April 2004, prior to the Veteran’s separation from service, that show that the Veteran was examined for an abnormal mole on his right upper back. A medical summary and Report of Medical Assessment note a mole with color variation that was scheduled for biopsy. The appellant’s representative asserts that this mole is a sign or manifestation of what would later be diagnosed as melanoma, one of the listed causes of the Veteran’s death. The Veteran was discharged in June 2004. He died in November 2012. Treatment records prior to the Veteran’s death indicate that the Veteran had a lengthy history of melanoma with metastasis to the brain and other organs. The record indicates that the Veteran had surgical resection of malignant melanoma from his left shoulder in February 2011. The treatment records associated with the Veteran’s cancer treatment and death also indicate that the Veteran has a history of hypertension. The very limited service treatment records obtained by the RO show that the Veteran was diagnosed with seborrheic keratosis in May 2014 and provided cancer education in February 2001. The available records show prescriptions for medications associated with skin conditions and statins for treatment of high cholesterol during active service. The record also shows the use of anesthesia for a skin procedure in November 2003. In the February 2021 informal hearing presentation (IHP), the Veteran’s representative also provided medical research associating long-term statin use with skin cancer and research regarding the misdiagnosis of melanoma as seborrheic keratosis. The appellant’s representative has requested that a specialist review the evidence presented regarding the Veteran’s cause of death. In this regard, the Board recognizes that VA examination or medical opinion has not been obtained as to the Veteran’s cause of death. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the record suggests that the Veteran’s melanoma and hypertension, causes or contributing factors in his death, may have manifest during service or are otherwise related to service. Accordingly, the Board finds that a remand is warranted for an examination and medical opinion addressing the nature and etiology of the Veteran's cause of death. This matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s causes of death and contributing factors, including hypertension, deep vein thrombosis, and melanoma. Specifically, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's causes of death and contributing factors, including melanoma, deep vein thrombosis, and hypertension, had their onset during active service or are otherwise related to active service. The examiner should also address the medical research provided by the appellant’s representative in the February 2021 IHP regarding the misdiagnosis of melanoma as seborrheic keratosis and the association of long-term statin use with skin cancer. A complete rationale for any opinions expressed should be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran's death and provide a rationale for all conclusions reached. If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the appellant with a supplemental statement of the case and afford her the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.