On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois
THE ISSUES
Entitlement to service connection for the cause of the veteran's death.
REPRESENTATION
Appellant represented by: Michael E. Wildhaber, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Hilary L. Goodman, Counsel
INTRODUCTION
The veteran, who served on active duty from November 1945 to
November 1947, died in October 1980.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from a November 1997 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Chicago, Illinois, which denied service
connection for the cause of the veteran's death.
On May 20, 1999, the Board issued a decision finding that the
appellant's claim for service connection for the cause of the
veteran's death was not well-grounded. The appellant
appealed the Board's 1997 decision to the United States Court
of Appeals for Veterans Claims (hereinafter, the Court). By
order dated April 20, 2000, the Court vacated the Board's
decision and remanded the matter for the Board to further
develop the record and reexamine the evidence. Additional
argument and evidence, which included a statement waiving RO
jurisdiction, were received from the appellant's
representative in August 2000.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the originating agency.
2. The cause of the veteran's death in October 1980 was
reported to be malignant melanoma with metastases.
3. It is as likely as not that the malignant melanoma with
metastases was related to the veteran's exposure to the sun
during active service.
CONCLUSION OF LAW
Malignant melanoma with metastases, which was incurred as the
result of service, caused the veteran's death; service
connection for the cause of the veteran's death is warranted.
38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking service connection for the cause of
the veteran's death. The Board notes that the appellant's
claim is "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a). That is, she has presented a claim which is
plausible. The Board concludes no further assistance to the
appellant is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a).
The appellant does not contend, nor does the evidence
suggest, that malignant melanoma, the condition shown on the
certificate of death as being the underlying cause of death,
was present in service. Rather, the appellant contends that
the veteran was exposed to the sun during his military
service in Guam and, as a result, he developed fatal
malignant melanoma which metastasized and ultimately caused
his demise.
Factual Background
On October 27, 1980, the veteran died at Ravenswood Hospital
Medical Center. The certificate of death listed the cause of
death as malignant melanoma with metastases. No contributory
causes of death were reported and it was indicated that an
autopsy was not performed. At the time of the veteran's
death service connection was not in effect for any
disability.
The veteran's Notice of Separation from the U.S. Naval
Service reflects that he had served overseas in Guam. His
service medical records are negative for any complaints,
findings, treatment or diagnosis with respect to the skin or
due to exposure to the sun.
Medical records from Little Company of Mary Hospital, dated
in 1979 to 1980, reflect that in August 1979 the veteran was
treated for metastatic squamous cell carcinoma of the right
neck area which had metastasized into the cervical lymph
nodes. The veteran had a malignant melanoma, superficial
spreading type, removed from his back in November 1979. The
melanoma was reported to be located at the level of the right
upper portion of the back close to the shoulder.
In April 1997 an article entitled "Sunlight and Skin Cancer"
from the Scientific American, dated in July 1996, which
discussed the relationship between exposure to the sun and
the subsequent development of skin cancer, was received from
the appellant. Also received were copies of photographs of
the veteran taken during his service in Guam and a February
1997 statement from the appellant's dermatologist, Keith M.
Kozeny, M.D. Dr. Kozeny stated that it was his opinion that
a malignant melanoma could occur thirty-five years or more
after a severe sunburn.
A video conference hearing, before the undesigned Board
Member, was conducted in March 1999. At this time the
appellant gave detailed testimony in support of the claim.
She testified that the veteran was fair-skinned, had lived in
Chicago, Illinois, and had never been exposed to the sun
until he served in Guam. She related that after service he
was a printer who worked indoors and did not engage in
outdoor activities, such as golf or fishing. She contends
that he did not have any hereditary factors which would have
predisposed him to the fatal melanoma and that his fatal
malignant melanoma was a result of in-service exposure to the
sun in Guam. She presented duplicate photographs of the
veteran during his service in Guam as well as additional
excerpts from various medical journals, each of which
discussed the risks of sun exposure, including skin cancer.
Craig N. Bash, M.D., in a May 2000 statement, indicated that
he had reviewed the veteran's claims file, including the
appellant's testimony and letters, the veteran's service
medical records, photographs of the veteran, post service
medical records and statements, the veteran's death
certificate and the medical literature. Dr. Bash was of the
opinion that the veteran's fatal malignant melanoma was
likely directly caused by his inservice sun exposure as the
tumors occurred in the anatomic location where he would have
likely received frequent sunburns due to the lack of a shirt,
the tumors were of the type associated with sun radiation
exposure, the tumors occurred at a latency period consistent
with sun exposure in the period 1946-47 and he did not have
any other documented post-service exposure to solar
radiation.
Analysis
38 U.S.C.A. § 1310 provides, in pertinent part, that when any
veteran dies from a service-connected or compensable
disability, the VA shall pay dependency and indemnity
compensation to such veteran's surviving spouse. The death
of a veteran is 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.
The appellant specifically asserts that, as the result of the
veteran's exposure to the sun while in Guam, he developed a
malignant melanoma and that this disability caused his death.
While the opinion from Dr. Kozeny did not affirmatively
establish the veteran's malignant melanoma was the result of
his exposure to the sun during service, Dr. Kozeny did
indicate that a malignant melanoma could occur thirty-five
years or more after a severe sunburn.
Dr. Bash, in his recent statement, concluded that, based upon
the location of the veteran's melanoma, the type of tumor and
the latency period, the malignant melanoma was likely
directly caused by his inservice sun exposure as the veteran
did not have any other documented post-service exposure to
solar radiation. Resolving all doubt in favor of the
appellant, the Board finds that the veteran's malignant
melanoma was the result of service and that service
connection should be granted for the cause of the veteran's
death. U.S.C.A. §§ 1310, 5107; 38 C.F.R. § 3.312.
ORDER
Entitlement to service connection for the cause of veteran's
death is granted. The appeal is allowed, subject to the law
and regulations governing the payment of monetary benefits.
