Citation Nr: 21026337 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-33 691 DATE: April 30, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in November 2012. The immediate cause of death is 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. 2. The evidence of record shows that metastatic melanoma, deep vein thrombosis, or hypertension, were not service-connected disabilities at the time of death. 3. There were no disabilities service connected at the time of death. Hypertension and melanomas were not shown until more than one year after service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(d), 3.311, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. The Board previously remanded this case for additional development in August 2018 and again in February 2021. The matter has now returned to the Board for appellate review. As an initial matter, the Board notes that nearly all the Veteran’s service treatment records are unavailable for review. Efforts by the Regional Office (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). Entitlement to service connection for cause of death Dependency and Indemnity Compensation (DIC) 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. In order for service connection for the cause of a veteran’s death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service or one which was proximately due to or the result of a service-connected disability. 38 U.S.C. § 1310; 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 such 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 not related to the principal cause. In determining whether the service-connected disability contributed to death, 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). Determinations as to whether service connection may be granted for a disability which caused or contributed to a veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of direct service connection. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection for certain chronic diseases, including cancers and hypertension, may be presumed where demonstrated to a compensable degree within one year following qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran died in November 2012; the immediate cause of death listed on his death certificate is 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. At the time of his death, the Veteran did not have any service-connected disabilities. The appellant asserts that the Veteran’s melanoma and hypertension, which contributed to the Veteran’s death, were directly related to his active service. However, for the reasons discussed below the Board finds these disabilities are not etiologically related to his active service. Turning to the record, as noted above the Veteran’s service treatment records have been determined to be unable for review. However, the record does contain a limited number of records from the time of the Veteran’s active military service. Specifically, records from the Naval Medical Center at Portsmouth reveal that during his active military service, the Veteran was treated for an in-grown toenail. At the time of the encounter, the Veteran reported a family history of hypertension and his lab work showed higher than normal triglycerides. Likewise, from the Veteran’s period of active military service, the appellant has submitted a service treatment record from April 2004 in which the Veteran reported a mole on his upper back with a color variation. The treatment note further shows that a biopsy was to be scheduled. A Report of Medical History from the same date reveals that the Veteran was treated for high cholesterol and that the freckle on his upper back was noted to be the size of an eraser and that it was positive for color changes. Additionally, in July 2014, VA received a record of the Veteran’s prescribed medications that were noted from treatment at a military installation during his time on active military service. The medications noted were: Zocor, erythromycin, simvastatin, Lamisil, acetaminophen, hydroxyzine, hydrocortisone, lidocaine, phenyl-histine, zentex, and benzonatate. Private treatment records from October 2012 show that the Veteran had a reported history of melanoma and diagnostic testing showed multiple melanoma in the brain. Recorded history, repeated in the records, was of a removal of a melanoma from the left shoulder in 2011. There is not history provided for treatment of an earlier melanoma. In accordance with the Board’s February 2021 remand, a medical opinion was obtained in February 2021. The examiner opined that it is less likely than not that the Veteran’s melanoma, deep vein thrombosis, and hypertension had their onset during service or are otherwise related to active service. In particular, the examiner noted that the Veteran’s seborrheic dermatitis, which was diagnosed during service, was not misdiagnosed melanoma. While there were no records to show that a biopsy was performed, the examiner explained that this condition is commonly diagnosed through physical examination because seborrheic dermatitis has a greasy or verrucous consistency upon palpation which distinguishes it from atypical pigmented naevi and malignant melanomas. Moreover, the examiner noted that to state that there was a misdiagnosis is highly debatable and would constitute resorting to mere speculation. Further, with respect to the contention that the Veteran’s melanoma resulted from longterm statin use, the examiner highlighted that according to literature, patients taking statins prior to receiving a melanoma diagnosis have a decreased risk of a melanoma recurrence compared with those not taking statins, according to a study published in the British Journal of Dermatology. Additionally, the February 2021 examiner explained that the Veteran’s immediate cause of death, bilateral acute ischemic strokes, occurs when a vessel supplying blood to the brain is obstructed; therefore, the deep vein thrombosis is the most plausible etiology because it is common that this condition results to thromboembolism and causes cerebral infarction ischemic stroke. Further, the examiner explained that the most common cause of intracerebral hemorrhage is high blood pressure. Finally, the examiner noted that the prognosis for patients with brain metastases is generally poor, with the median survival being one month for patients not receiving treatment. Accordingly, the examiner found that the cumulative effect of the mentioned conditions resulted in the Veteran’s death. The evidence shows that at the time of his death the Veteran had a history a melanoma that had metastasized to his brain. Although the appellant asserts that the Veteran was seen during service for a suspicious mole that was positive for color changes, the available records do not show that the Veteran was diagnosed with or treated for melanoma during active service. As noted, records in 2012 contain only a history of a melanoma removal in 2011, without reference to any earlier findings of a melanoma. Consequently, the Board finds that there is no in-service injury or event to attribute the Veteran’s melanoma. The evidence shows that at the time of his death the Veteran had a current diagnosis of hypertension. Although the appellant contends that the Veteran was diagnosed with hypertension during active service, the available records show only that he was treated for high cholesterol with prescription medication. Consequently, the Veteran’s hypertension did not manifest to a degree of 10 percent or more within one year of separation. The record does not indicate that it was identified earlier than 2012, the time of the Veteran’s death, and the Veteran separated from active service in 2004. Therefore, the presumption of service connection for hypertension as a chronic disease is not available to the appellant. Additionally, because hypertension was never identified in service, it would be impossible to establish continuity of symptomatology following upon service and the subsequent record does not reflect this. The Board acknowledges that the appellant sincerely believes that the Veteran’s melanoma and hypertension were the result of the Veteran’s active military service. However, the appellant is not shown to have the medical expertise to competently render an independent medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the lay assertions of etiology of record are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection for the cause of the Veteran’s death. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board finds that the Veteran died of 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, with deep vein thrombosis and hypertension as significant conditions contributing to death. These conditions were not service-connected at the time of the Veteran’s death, and the competent medical evidence of record does not indicate that they were incurred during or otherwise related to his active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.