Citation Nr: 22014357 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 15-24 191 DATE: March 12, 2022 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDING OF FACT The evidence is against a finding that the cause of the Veteran's death was related to or caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to July 1987, including service in the Republic of Vietnam. In light of the Veteran's service in Vietnam, he is presumed to have been exposed to herbicides. The Veteran is in receipt of the Vietnam Cross of Gallantry with Palm, Vietnam Service Medal, Vietnam Campaign Medal the Civil Action Honor Medal, Army Commendation Medal, Joint Service Commendation Medal, and the Meritorious Unit Commendation. It is unfortunate that in February 2008 the Veteran died. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the appellant testified before the undersigned Veterans Law Judge at a travel board hearing in St. Peterburg, Florida. A transcript is of record. The Board remanded this case in September 2020, and most recently in June 2021, for additional development. As the actions specified in the most recent remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the appellant nor her representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 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 this case, the Veteran served in the Republic of Vietnam from September 1965 to October 1965 during the Vietnam Era and is presumed to have been exposed to herbicides. If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases shall be service connected if manifests to a compensable degree at any time after service. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). The death of a veteran will be considered to have been due to service-connected disability where the evidence establishes that a disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Entitlement to service connection for the Veteran's cause of death The appellant seeks service connection for the cause of the Veteran's death. The Veteran died in February 2008. The Veteran's death certificate identifies metastatic malignant melanoma as the cause of his death. At the time of his death, the Veteran was not service-connected for any disabilities. In support of her claim the appellant has raised several theories of entitlement. First, the appellant contends that the Veteran's melanoma was due to his presumptive exposure to herbicide agents while serving in Vietnam. Alternatively, she argues that his melanoma may have been caused by excessive sun exposure and repeated sunburns in Vietnam. Finally, the appellant has stated that the Veteran was being treated for lung cancer and diabetes mellitus and that these diseases, which are presumptively associated with exposure to herbicide agents, may have contributed to his death. Turning to the relevant evidence, the appellant submitted a private nexus opinion from Dr. N.S., the Veteran's former treating provider. Dr. N.S. noted that while the Veteran did not have any unusual exposure to sun or any ionizing radiation, he did have exposure to Agent Orange. Dr. N.S. opined that "it could be a possibility [that the Veteran's metastatic melanoma] could be as a result of Agent Orange exposure even though there is no significant literature to this fact." See July 2012 Private Opinion At her May 2019 Board hearing, the appellant testified that in Vietnam the Veteran frequently ran either without a shirt ,or with only a short sleeve shirt, and that he was sunburned on a daily basis. The appellant recalled that the Veteran's treating physicians surmised that the Veteran's metastatic melanoma was "probably" due to his exposure to herbicide agents but that they couldn't "pinpoint it because there's no real clinical test" that they could do to make such a determination. The appellant attested to her belief that the Veteran's in-service sunburns could have caused his metastatic melanoma because the Veteran did not walk around shirtless as a child, and post-service he worked inside with no sun exposure. A veteran witness who also served in Vietnam, testified that they were never supplied with sunscreen. See May 2019 Board Hearing Transcript In February 2021, a VA examiner provided a negative opinion for the appellant's claim. Though the Board previously found parts of the examiner's opinion to be inadequate, the VA examiner's opinion regarding whether the Veteran's lung cancer may have contributed to his death is entitled to probative weight. The examiner noted that early in the Veteran's diagnostic workup, a possibility of lung cancer due to his 20 pack per year history of smoking was documented. However, the examiner noted that there is no objective evidence of a diagnosis of any cancer in the lungs other than metastatic malignant melanoma. Pursuant to the June 2021 Board remand, the Board obtained addendum VA opinions in July and August 2021 to address all theories of entitlement. After reviewing the entire claims file, the examiner opined that it is less likely than not that the Veteran's metastatic melanoma was incurred in or caused by his presumed herbicide exposure. The examiner explained that the Veterans and Agent Orange (VAO) Committee concluded that there was inadequate or insufficient information to determine whether there is an association between exposure to the chemicals of interest (COIs) and skin cancers. The Update 1998 committee considered the literature on melanoma separately from that of non-melanoma skin cancers and found that there was inadequate or insufficient information to determine whether there is an association between the COIs and melanoma. Additional evidence reviewed by update committees has not changed the conclusion. No new studies of Vietnam veterans (U.S. or international) and melanoma or environmental studies of melanoma and the COIs have been identified since Update 2014. The examiner noted that the VAO committee has concluded that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and melanoma (dermal or ocular). The examiner explained that sun exposure is the most important environmental cause of skin cancer (Basal cell carcinoma, squamous cell carcinoma of the skin and malignant melanoma and actinic keratosis (BCC, SCC, MM, AK)) and most risk factors relate directly to a person's sun exposure habits or susceptibility to solar radiation. These risk factors include having fair skin, light-colored eyes, red hair, northern European ancestry, older age, childhood freckling, and an increased number of past sunburns. In August 2021, the RO obtained additional VA opinions to address all of the appellant's theories of entitlement. The August 2021 VA examiner opined that it is less likely than not that the Veteran's metastatic melanoma was caused by his service, to include in-service agent orange and sun exposure. In providing the opinion, the examiner acknowledged review of the appellant's statements that the Veteran wore a shirt in childhood to avoid sunlight, that the Veteran's post-service employment was indoors, and that during Vietnam the Veteran did not wear a shirt which resulted in daily sun exposure in Vietnam that caused a melanoma. The examiner explained that medical literature indicates that melanoma etiology includes many factors, among them skin lesions precursors (common acquired nevus, dysplastic nevus, congenital nevus and cellular blue nevus). Additionally, genetics can be an etiological factor. Exposure to ultraviolet radiation is a critical factor in development of most melanomas. Sunburn has also been implicated as an etiological factor. The examiner stated that she was unable to assess without resorting to mere speculation that the Veteran was constantly shirtless and daily exposed to sunburn in Vietnam in a way that caused a melanoma. The examiner noted that the Veteran's melanoma treating physicians assessed that his melanoma was a very atypical presentation (metastatic gastric) for the malignant melanoma since the Veteran had multiple freckles and moles and atypical pigmented lesions but none of them stood out to be the primary melanoma lesion and that the Veteran never had a skin biopsy done. The examiner found it noteworthy that a melanoma can develop in body areas that are unexposed to the sun, areas of the skin such as palms, soles and perineum. Though it is true that sunburn and exposure to ultraviolet radiation are critical factors for development of melanoma, the examiner stated that while she speculates that the appellant 's statements regarding the Veteran's avoidance of sun in childhood and in-service daily sun exposure without wearing a shirt, can be true, that they are not documented fact. Therefore, the examiner concluded that regarding whether exposure of sunlight during Vietnam service resulted in melanoma, she is unable to opine without resorting to mere speculation. Addressing the appellant's contention that the Veteran's diabetes mellitus may have contributed to his death, the August 2021 VA examiner opined that it is less likely than not that the Veteran's diabetes mellitus contributed to his death. The examiner noted that the Veteran developed multi organ metastatic disease, developing pleural effusions, acute renal failure, hypercoagulable state, among many other cancer complications. Overall, the examiner concluded that diabetes was not a factor related to the Veteran's death. In a February 2022 brief in support of her claim, the appellant through her representative pointed out that in other cases, VA has granted service connection for malignant melanoma as a cause of death. The representative cited one case in particular where the Board discussed a VA expert opinion which stated that studies have shown an increased risk of malignant melanoma in veterans exposed to dioxin, and cites to a study entitled Cancer in US Air Force Veterans of the Vietnam War wherein the index group had been exposed to high levels of dioxin. Overall, the expert in the referenced case concluded that dioxin exposure was the proximate cause of the veteran's chloracne and malignant melanoma and resulted in his death. See February 2022 Informal Hearing Presentation. However, previous Board decisions do not establish precedent, as each case before the Board contains the unique facts and circumstances of each Veteran. 38 C.F.R. § 20.1303. The Board finds that the current record contains ample medical evidence to fairly resolve the matter at issue, and remand to obtain an addendum medical opinion would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). The Board acknowledges that there is a conflicting medical opinion of record. As with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The appellant provided July 2012 private positive nexus opinion suggests a link between the Veteran's metastatic melanoma and his conceded exposure to herbicide agents. The Board finds the July 2012 private opinion by Dr. N.S. to be speculative. Dr. N.S. opined that it was a "possibility" that the Veteran's metastatic melanoma could be a result of Agent Orange exposure, "even though there is no significant literature to this fact." The use of the words "possible," "may," or "can be" make a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative). The Board finds the July and August 2021 VA opinions to be highly probative. In this regard, the opinions are based on a detailed review of the Veteran's medical history, the application of current medical principles with consideration of medical literature and the examiner's own expertise as a medical provider to the facts of the Veteran's case. The examiners provided clear, definitive, well-reasoned medical rationales to support their conclusions that are consistent with the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295; see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In summary, the Board finds that the claims file does not contain competent and credible evidence that the Veteran's primary cause of death, metastatic melanoma, is related to the Veteran's military service, to include sun exposure and conceded exposure to herbicide agents. Significantly, the most probative medical opinion evidence, as outlined above, weighs against the appellant's claim for service connection for the Veteran's cause of death. Although the appellant is competent to relay lay-observable symptoms, she is not competent to opine that the Veteran's death was etiologically related to service, as this is a complex medical question beyond the knowledge of a layperson and she lacks the requisite medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must rely on the objective medical evidence of record, rendered by qualified medical professionals, and the most probative medical evidence weighs against finding in favor of service connection for the cause of the Veteran's death. Accordingly, the Board finds that the evidence is against the appellant's claim for service connection for the Veteran's cause of death due to the Veteran's military service, to include sun exposure and sunburns, or conceded exposure to herbicide agents, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is sympathetic to the appellant's claim, it has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes that the denial of this claim does not in any way diminish the Veteran's honorable service to our country. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.