Citation Nr: 1315806	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  07-05 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran had active service from July 1966 to June 1968, including service in the Republic of Vietnam.  He died in February 2005.  The appellant is the Veteran's surviving spouse.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

A hearing before the undersigned Veterans Law Judge was held at the RO in September 2008.  The hearing transcript has been associated with the claims file.

In November 2008 and October 2009, the Board remanded the present matter for additional development and due process concerns.

In December 2010 the Board referred the case to the Veterans Health Administration (VHA) for a medical expert opinion.  An opinion was obtained in February 2011.  The Board sought clarification of the medical expert opinion in April 2011.  Another medical expert opinion was received in April 2011.  The Board again sought clarification of the medical expert opinion in May 2011.  Another medical expert opinion was received in August 2011.  Copies of the opinions were sent to the appellant and her representative in September 2011.  The appellant's representative responded in September 2011.

Thereafter, in October 2011 the Board denied the appellant's claim.  The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In an April 2012 order, the Court granted the parties' joint motion for remand, vacated the Board's October 2011 decision and remanded the case for compliance with the terms of the joint motion.

On remand from the Court, in September 2012 the Board again referred the case to the VHA for a medical expert opinion.  An opinion was obtained in October 2012.  The Board sought clarification of the medical expert opinion in November 2012.  Another medical expert opinion was received in December 2012.  Copies of the opinions were sent to the appellant and her representative in February 2013.  The appellant's representative responded in February 2013.

In a statement submitted by the Veteran's then-representative in September 2011, it was reported that:

At the time of [the Veteran's] death he had an appeal pending . . . for initial evaluation for PTSD and hearing loss.  The file does not indicate that the issue of entitlement to accrued benefits has ever been addressed by the AOJ, nor has the AOJ addressed the question of whether the surviving spouse may substitute herself as the appellant in that case.

These matters are not before the Board and are referred to the RO for appropriate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).




FINDINGS OF FACT

1.  The cause of death was metastatic melanoma.

2.  Affording the appellant the benefit of the doubt, the Veteran's metastatic melanoma was related to service and/or in-service exposure to herbicides.   


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have been met.  38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

II.  Service Connection for the Cause of the Veteran's Death

The Veteran died in February 2005 as a result of metastatic melanoma.  The appellant contends that the Veteran's death resulted from herbicide exposure during service.

VA law provides for death indemnity compensation (DIC) benefits to a Veteran's surviving spouse because of a service-connected death occurring after December 31, 1956.  38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5.  To be considered a "surviving spouse" of a Veteran, the applicant must have been the Veteran's spouse at the time of his death and have lived continuously with him from the date of their marriage to the date of his death, except where there was a separation due to the misconduct of the Veteran or procured by the Veteran without fault of the spouse.  38 C.F.R. § 3.50(b).  

The appellant and the Veteran were married in January 1967.  A private treatment note dated in October 2002 indicates that the Veteran reported that he was not married.  A VA record system statement dated in October 2006 indicates that "[t]his V.A. system of records show the Veteran as being divorced."  However, the appellant contends this statement is an error.  However, on a Financial Status Report dated in March 2004 the Veteran indicates that he is married to the appellant and the Veteran's Death Certificate lists the Veteran as married.  As such, the evidence does not indicate that the Veteran and appellant were divorced prior to his death.  

The evidence also does not indicate that the Veteran and the appellant lived continuously with each other from the date of their marriage until the date of the Veteran's death, however; rather, the evidence indicates that the Veteran and appellant lived apart prior to the Veteran's death.  At a July 2003 VA examination the Veteran reported that he and the appellant had been separated for three or four years.  Thus, there is no "continuous cohabitation" from the date of marriage, in the literal meaning of the term.  

The regulations provide an exception, however, for certain circumstances in which there has been a separation.  Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.  Additionally, if the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason that did not show intent on the part of the surviving spouse to desert the Veteran, the continuity of the cohabitation will not be considered as having been broken.  38 C.F.R. § 3.53 (2012).  

A two-part test has been identified to determine whether a spouse can be deemed to have continuously cohabited with a Veteran even if a separation has occurred.  First, the spouse must be free of fault in the initial separation.  Second, the separation must have been procured by the Veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation.  Gregory v. Brown, 5 Vet. App. 108 (1993).  

The record includes statements from the appellant that she lived with the Veteran and cared for him for the last few months of his life.  See April 2005 VA Form 21-686c "Declaration of Status of Dependents."  The record does not contain any evidence suggesting that the separation was due to misconduct or fault by the appellant.  Thus, for the purposes of this decision, the Board finds the continuity of cohabitation was not broken and the appellant is a "surviving spouse."

In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death.  38 C.F.R. § 3.312(b). 

In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death.  See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1).  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.A. § 1310; 38 C.F.R. § 3.312.

Where there are primary causes of death that by their nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, it would generally not be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).

Service connection for the cause of a Veteran's death may also be demonstrated by showing that the Veteran's death was caused by a disability of service origin. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2103).

VA regulations provide presumptive service connection for certain diseases for Veterans shown to be exposed to an herbicide agent during active military service.  38 C.F.R. § 3.309(e).  Melanoma is not is a disease presumptively associated with exposure to herbicide agents under VA regulations, however; in fact, the Secretary of VA has specifically determined that skin cancer (of the melanoma, basal, and squamous cell type) is not associated with exposure to herbicide agent for purposes of the presumption.  See 72 Fed. Reg. 32,395 (June 12, 2007).

The Board acknowledges that the appellant contends that the Veteran really had metastatic lung cancer, which is a presumptive disease.  However, the medical clearly establishes that the cause of death was melanoma which metastasized to other areas, including the lungs.  As such, the automatic presumption of service connection afforded for certain specific diseases associated with exposure to herbicides is not for application in this case.

A claimant may still establish service connection for diseases not listed as presumptive based on a direct basis or with proof of actual direct causation by in-service exposure to Agent Orange.  See Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007).

The service treatment records reflect no complaints or findings suggestive of a chronic skin disorder, and the separation examination reflects normal clinical findings for the skin.  

An October 2000 VA dermatology treatment note reveals the Veteran's history of a lesion on the right clavicular area.  The Veteran reported that it started nine months earlier and had gotten bigger and bled.  Examination revealed a red macular area in the right clavicular area without induration.  It was slightly excoriated from scratching and had a shiny appearance.  After examination and review of biopsy results in October 2000, he was assessed with basal cell carcinoma of the chest.  

A July 2002 VA treatment record reflects the Veteran's two-year history of skin lesions which intermittently appear on the nape of his neck.  The record indicates that the lesions "seem[ed] like foliculitis lesions."  A September 2002 VA treatment record reflects the Veteran's history of acneiform papules on his face and a one-year history of an inflamed cystic lesion on the face.  The Veteran also reported a previous history of a benign growth on the left shoulder which was treated with "cryo."  The examiner noted that he did not think the lesion was skin cancer; he injected the lesion with diluted kenalog and prescribed erythromycin for the acne.  

A November 2002 private treatment record reflects the Veteran's history of status-post removal of skin cancer.  

In December 2004, the Veteran was assessed with metastatic melanoma.  Treatment records dating from December 2004, forward, reflect the Veteran's histories of   melanoma excision in the late 1970s, arm melanoma and shoulder skin cancer in approximately 1990, and melanoma status-post excision in the left upper chest wall and neck.

In September 2008, the appellant testified that after the Veteran's return from Vietnam, he developed small tumors or bumps on his face, which was diagnosed as chloracne.

A May 2009 Supplemental Statement of the Case refers to a February 2009 VA medical record (a copy of which is not currently in the claims folder) which reflects the author's opinion that it was "certainly less likely than not that [the Veteran's] metastatic melanoma [was] in any way related to chloracne."  

In July and September 2009, the appellant, the Veteran's siblings, and the Veteran's children submitted statements reporting that the Veteran  had lesions or lumps on his face which onset after he returned from Vietnam.  

A September 2009 statement from a private physician, Dr. P.N., reflects the physician's opinion that the lesions on the Veteran's face "could have been" the source of the melanoma that caused the Veteran's death.  However, the physician reported that he did not have any pathological confirmation of this link.

A January 2010 VA medical record reflects the author's opinion that, after review of the claims file, it was not likely that the Veteran's melanoma was due to or related to chloracne.  The author explained that there was no association between chloracne and melanoma.  

The Board requested an opinion from a VHA specialist as to whether it is at least as likely as not that the metastatic melanoma which caused the Veteran's death was proximately due to or the result of any skin disorder which would cause lesions to the face and neck, to include chloracne, immediately following the Veteran's service in Vietnam.  In opinions provided in February, April, and August 2011, a VA Chief of Dermatology opined that it was at least as likely as not that the metastatic melanoma which caused the death of the Veteran was proximately due to or the result of a skin disorder which could cause lesions to the face and neck, which was present immediately following the Veteran's service in Vietnam.  The specialist explained that the Veteran was exposed to dioxin-contaminated herbicides in service and that studies have shown an increased risk of malignant melanoma in Veterans exposed to dioxin.  She added that dioxin had been shown to cause multiple health issues, including chloracne and melanoma.  She added that, to her knowledge, chloracne was not a known risk factor for melanoma.  Thus, she found the dioxin exposure was the proximate cause of both medical problems and resulted in the death of the Veteran.  In support of this determination, the Chief of Dermatology attached the results of a study, "Cancer in US Air Force Veterans of the Vietnam War." 

In a private medical opinion report, dated in July 2012, Dr. R.S.F. provided a detailed discussion of the Veteran's prior medical history.  After this discussion the physician rendered the opinion:

Based on my review of the medical records as well as the medical literature, it is my professional opinion, at least as likely as not (a 50 percent probability or greater) that the metastatic melanoma which caused the death of [the Veteran] was proximately due to or the result of a skin disorder which would cause lesions to the face and neck, including chloracne, which was present immediately following [the Veteran's] service in Vietnam.

The physician reported that the Veteran was exposed to dioxin-contaminated herbicides during his service in Vietnam and dioxin has been shown to cause multiple health issues.  The physician provided an article regarding polychlorinated biphenyls (PCB) UV radiation and cutaneous malignant melanoma to support his opinion.

In October 2012 a VA medical expert rendered the opinion that it is less likely than not that the Veteran's malignant melanoma was in any way related to dioxin exposure while serving in Vietnam.  The expert noted that malignant melanoma is not a presumptive disease associated with exposure to Agent Orange or other herbicides during military service and that "[a]s a staff dermatologist I do not consider disease not on this list as service-connected to Agent Orange."  The expert continued to state that chloracne is a very rare disorder usually seen only after very high exposure to dioxin typically from an industrial accident.  Acne is common particularly in tropical climates.  The expert indicated that a PubMed search was performed and could not find any association between chloracne and malignant melanoma.  The expert stated that the most common site for malignant melanoma is the back in men.  Malignant melanoma of the face and neck typically occurs in the elderly due to chronic effects of sun exposure.  The expert discussed the article entitled Cancer in US Air Force Veterans of the Vietnam War.  It was noted that the Veteran was not part of operation Ranch Hand and his exposure to Agent Orange was even lower making any possible association between his service in Vietnam and his malignant melanoma even less likely.

In December 2012 a VA medical expert provided a clarification of the October 2012 opinion.  The expert stated:

Given that his malignant melanoma was not related to Agent Orange exposure and his malignant melanoma was unrelated to his chloracne it is less likely as not (less than 50/50 probability) that the metastatic melanoma that caused the [V]eteran's death was proximately due to or the result of or aggravated by any skin disorder which would cause lesions to the face and neck, including chloracne that was present immediately following the [V]eteran's service in Vietnam.

The expert provided the rationale that malignant melanoma is a relatively common and severe condition and the fact that it is not listed as a presumptive disease with Agent Orange exposure supports the lack of an association between Agent Orange and malignant melanoma.  The expert noted that Operation Ranch Hand was the unit responsible for aerially spraying herbicides in Vietnam from 1962 to 1971, that there are a number of studies published on this group, and they are identified as the group most exposed to Agent Orange and most at risk for adverse health effects. The expert continued to identify a selection of these studies.  A study was noted to indicate that the exposure of troops by direct spray or moving through an area recently sprayed was unlikely.  A study was noted to find that it was likely that 99 percent of the 2, 3, 7, 8 - Tetrachlorodibenzoxioxin (TCDD) never persisted beyond the day of application and that no long-term adverse ecological effects were documented in these studies despite massive quantities of herbicides and TCDD that were applied to the site.

The expert reported that chloracne is a rare variant of acne and that there were no studies reporting an association between chloracne and malignant melanoma.  The expert stated that studies actually suggest that acne may reduce the risk of malignant melanoma.  Nonmelanoma skin cancer, not melanoma, may occur in areas of scars.  Nonmelanoma skin cancer such as squamous cell carcinoma do not turn into melanoma.  The expert provided references to articles supporting this determination.  

Affording the appellant the benefit of the doubt, the Veteran's death is proximately due to his active service.  

The Board finds that although the claims file is negative for skin problems, to include a diagnosis of chloracne, immediately after the Veteran's discharge from service, the appellant has provided credible testimony and submitted several statements from family members noting several lesions on the Veteran's face and neck after his discharge from service.  The Veteran's exposure to herbicides while serving in Vietnam is presumed.  The Board has afforded the appellant the benefit of the doubt as to the fact that the Veteran had chloracne.  

In September 2009 Dr. P.N. noted that the Veteran did suffer from melanoma to the brain and indicated that melanoma usually comes from the skin.  Dr. P.B. indicated that the lesions on the Veteran's face could have been the source of the melanoma, but Dr. P.N. had no pathological confirmation of this.  

As noted above, a VA medical expert rendered the opinion in August 2011 that it is at least as likely as not that the metastatic melanoma which caused the death of the Veteran was proximately due to or the result of a skin disorder which would cause lesions to the face and neck, including chloracne, which was present immediately following the Veteran's service in Vietnam.  The medical expert noted that the Veteran was exposed to dioxin-contaminated herbicides during his service in Vietnam and indicated that dioxin had been shown to cause multiple health issues including chloracne (which the Veteran had) and malignant melanoma.  The expert supported the opinion with studies that have shown an increased risk of malignant melanoma.  The medical expert further stated that to her knowledge chloracne is not a known risk factor for melanoma.  However, the medical expert concluded that the dioxin exposure is the proximate cause of both medical problems, and resulted in the death of the Veteran.

The study cited by the VA medical expert reveals that the index subjects were Operation Ranch Hand Veterans.  As the Veteran did not participate in Operation Ranch Hand, the Board found the opinion was of no probative value.

A private medical opinion dated in July 2012 provided the opinion that the Veteran's metastatic melanoma, which caused the death of the Veteran was proximately due to or the result of a skin disorder which would cause lesions to the face and neck, including chloracne, which was present immediately following the Veteran's service in Vietnam. 

However, as noted in the September 2012 request for a VA medical expert opinion, the Board found that the medical opinion of Dr. R.S.F. is entitled no probative value as physician did not provide a rationale in support of his opinion that chloracne caused the melanoma which caused the Veteran's death and he relied on a study that, in part, discussed an increased risk between exposure to PCBs and cutaneous malignant melanoma.  The Board further noted that it does not appear that PCBs are a dioxin.

In November 2012 the Board found the October 2012 opinion of a VA medical expert to be inadequate as the expert inaccurately premised the opinion on the fact that the disease was not on the list of presumptive diseases.  In addition, the expert was found to not have accurately considered the Veteran's exposure to Agent Orange or his history of chloracne to the face and neck as conceded by the Board.  

Thereafter, in December 2012 a VA medical expert rendered the opinion that the Veteran's malignant melanoma was not related to Agent Orange exposure and his malignant melanoma was unrelated to his chloracne and, therefore, the Veteran's death was less likely as not caused by or aggravated by any skin disorder which would cause lesions to the face and neck, including chloracne.  

However, the Board finds the expert's opinion to be inadequate as it relies on the lack of the existence of melanoma on the presumptive service connection list for exposure to herbicides and indicates that it is unlikely that the Veteran was exposed to herbicides.  The Board notes that the Veteran is presumed to be exposed to herbicides by virtue of his service in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii).  

In February 2013, the appellant's representative argued that the Board's continued attempts to develop the appellant's claim represent needless development.  In Mariano v. Principi, 17 Vet. App. 305 (2003), the Court indicated it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case."  Mariano, at 312.  In Douglas v. Shinseki, 23 Vet. App. 19 (2009), however, the Court distinguished its holding in Mariano.  In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim.  Douglas, at 26.  Here, as justification for requesting the clarifying opinions, the Board pointed out those opinions were inadequate due to a lack of rationale or the erroneous consideration of an aspect of the Veteran's service.  

The Veteran is presumed to have had exposure to herbicides in the Republic of Vietnam.  Although the Veteran's chloracne has been found to be unrelated to the development of malignant melanoma, the Board notes that the evidence reveals that the development of chloracne is an indicator of exposure to high levels of dioxins.  Thus, further consideration of the August 2011 VA medical expert opinion is warranted.  The August 2011 VA medical expert opinion states that studies have shown an increased risk of malignant melanoma in Veterans exposed to dioxin and cited 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.  The expert continued to state that dioxin had been shown to cause multiple health issues including chloracne (which the Veteran had) and malignant melanoma.  Lastly, the expert concluded that the dioxin exposure is the proximate cause of both medical problems, and resulted in the death of the Veteran.  As the Veteran's chloracne reveals exposure to high levels of dioxins and high levels of dioxin exposure have been shown to cause multiple health issues including malignant melanoma, after further consideration and affording the appellant the benefit of the doubt, entitlement to service connection for the cause of the Veteran's death is granted.


ORDER

Service connection for the cause of the Veteran's death is granted.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs