CCK Argues for Remand from Court Following Board Denial of Service Connection for Cause of Death
Summary of the Case
The Veteran served honorably in the United States Army from 1965 to 1968. Between September 1965 and December 1966, he was stationed at various posts in Louisiana, Texas, Georgia, and North Carolina and was deployed to Vietnam thereafter. Immediately after service, the Veteran sought treatment with VA for a skin rash on his chest and back. In January 2003, he had a small melanoma lesion excised from his lower back. Other lesions were discovered in 2009 and he was diagnosed with recurrent stage IV melanoma, which had metastasized to other organs. The skin cancer progressed until the Veteran’s death in May 2011. His death certificate initially listed only metastatic malignant melanoma as the immediate cause of death; however, it was later amended to include prostate cancer, lung tumors, and brain metastases as underlying causes.
Shortly after the Veteran’s death, his spouse sought Dependency and Indemnity Compensation (DIC). The Regional Office initially denied her claim and she appealed and asserted, among other things, that the Veteran was exposed to Agent Orange while stationed in Vietnam, which caused his malignant melanoma, as well as cancer of the brain, lungs, and prostate. She submitted a statement from a private oncologist that the Veteran “also had prostate cancer and lung neoplasm, type unspecified” at the time of his death. In July 2013, VA issued a medical opinion in which the physician concluded that cancer in the Veteran’s brain, lungs, and prostate had metastasized from his skin, meaning those sites were not primary cancer locations. The physician determined there was no documentation confirming primary lung or prostate cancer. Additionally, the masses revealed by positron emission and computerized tomography “in the lung and other organs were stated by the Veteran’s oncologists and other specialists to be due to metastasis from the skin melanoma.”
Nevertheless, in 2015 the Board remanded the issue of service connection for cause of death in light of the amended death certificate for an addendum opinion that addressed two questions: (1) was it at least as likely as not that prostate or lung cancers contributed to the Veteran’s death; and (2) if not, was melanoma at least as likely as not related to in-service Agent Orange exposure. The resulting opinion answered both questions in the negative. Specifically, the VA examiner found that although the Veteran’s death certificate was amended to read prostate cancer as a contributory cause of death, there was no definitive diagnosis of prostate or lung cancer. The examiner also concluded that there was no definitive relationship between melanoma and herbicide exposure. Instead, he opined that malignant melanoma more likely resulted from intense, intermittent sun exposure and sunburns where he resided in Las Vegas and Arizona. The Veteran’s spouse disputed these findings in a March 2017 letter indicating that the Veteran was regularly exposed to sunlight during Army training in Georgia and North Carolina and while stationed in Vietnam.
Board denies service connection for cause of death
In November 2017 the Board issued a decision that denied service connection for the Veteran’s cause of death. In its decision, the Board relied on the 2013 and 2016 VA medical opinions for its two conclusions. First, the Board determined that melanoma was the primary cancer and that prostate and lung cancers were metastatic in nature. Second, it determined that melanoma was not likely caused by Agent Orange exposure.
CCK appeals to the CAVC
CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for the Veteran’s cause of death. CCK primarily argued that the Board erred in failing to address the appellant’s explicitly raised theory that the Veteran’s melanoma was related to his in-service sun exposure and failed to get an opinion on the issue. Additionally, CCK argued that the Board erred in finding that the Veteran did not have a diagnosis of prostate cancer and in relying on inadequate medical opinions to do so.
Court remands service connection for cause of death claim
CCK argued, and the Court agreed, that the Board should have addressed the appellant’s theory that the Veteran’s melanoma was related to extensive exposure to sunlight while serving in Georgia, North Carolina, and Vietnam. The Court noted that the appellant had contested an examiner’s finding that the Veteran was exposed to excessive sunlight after service, but did not acknowledge the in-service sun exposure theory. On remand, the Board should address whether a medical opinion on this issue is required.
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