BVA9504946 DOCKET NO. 90-46 642 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the veteran's death as a result of exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from December 1966 until February 1971 including service in Vietnam. His surviving spouse is the appellant. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1990, from the Nashville, Tennessee, regional office (RO) which denied service connection for the cause of death. In a decision dated in March 1991, the case was remanded by the Board for further development of the record. The case was returned to the Board and, in a decision dated in November 1991, the case was again remanded by the Board primarily for adjudication of the issue of whether exposure to the toxic chemicals in Agent Orange caused or contributed to his death. The RO deferred adjudication of this issue pending promulgation of final regulations on the matter of residual disability resulting from Agent Orange exposure during service in accordance with the ruling in Nehmer v. United States Veterans' Administration, 712 F.Supp. 1404 (N. D. Cal. 1989). The appellant asked that review of the case proceed excluding the Agent Orange issue. A decision was issued by the Board in April 1993 denying entitlement to service connection for the cause of the veteran's death other than as a result of exposure to Agent Orange. In Nehmer, a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the Department of Veterans Affairs for revision of the regulation in accordance with the ruling of the Court. Adjudication of the veteran's claim regarding exposure to Agent Orange was deferred by the RO pending promulgation of the new regulations. The regulations have been revised, and diseases associated with exposure to certain herbicide agents are enumerated in 38 C.F.R. § 3.309(e) (1994). Further, the Secretary of Veterans Affairs formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for specified conditions or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed.Reg. 341, 346 (1994). The RO reviewed the appellant's claim for service connection for cause of the veteran's death and by a rating action in June 1994 again denied the claim as it determined that the veteran's death from bronchopneumonia with severe pulmonary edema along with mediastinal malignant melanoma with bronchoesophageal fistula was not associated with herbicide exposure, and there was no other basis for service connection. We note that the representative requests referral of the case for an independent medical expert evaluation, however, the Board believes the evidence contained in the claims file is sufficient on which to make a determination. CONTENTIONS OF APPELLANT ON APPEAL The appellant, widow of the veteran, contends that the RO erred in not granting service connection for the cause of the veteran's death due to exposure to Agent Orange. She contends that when the veteran was in Vietnam he was in a group which mixed and sprayed Agent Orange. She alleges that the exposure to Agent Orange caused many moles on his body and one of these moles was the cause of his death. One mole grew down into his body and became a malignant melanoma. She claims that the malignant melanoma which caused his death developed due to exposure to Agent Orange, and that pneumonia set in and caused him to die sooner. The appellant further contends, through her representative, that at the time of the veteran's death, he had one of the presumptive diseases recognized by the Secretary, specifically, lymphoma, and/or Hodgkin's disease. The appellant questions whether the pathologist saw these diseases and suggests that he failed to report in entirety the findings. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against service connection for the cause of the veteran's death as a result of exposure to Agent Orange. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. Service connection was not established for any disorder. 3. The tentative diagnosis of lymphoma and/or Hodgkin's disease was an initial diagnosis of a mediastinal mass based on clinical impression. After a surgical biopsy, the definitive diagnosis of the mediastinal mass was malignant melanoma. 4. The autopsy report, which included diagnoses of disorders in addition to malignant melanoma, did not include lymphoma and/or Hodgkin's disease. 5. Malignant melanoma is not a disease recognized by the Department of Veterans Affairs (VA) as causally related to exposure to herbicide agents used in Vietnam and which is subject to presumptive service connection. 6. A direct causal connection between the appellant's malignant melanoma first shown many years after service and exposure to herbicide agents in Vietnam or any other incident of service has not been demonstrated. CONCLUSION OF LAW A disorder incurred in or aggravated by service did not cause or contribute substantially or materially to cause death. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Based on the contention that the veteran had a diagnosis of lymphoma and/or Hodgkin's disease and these diseases are conditions for which a presumption of service connection is warranted, we find that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, she has not indicated that any probative evidence not already associated with the claims folder is available; therefore the duty to assist her has been satisfied. Id. The appellant filed a claim in December 1989 for service connection for the cause of death of the veteran, her spouse. At the time of death, the veteran was not service-connected for any disability. By a rating action dated in May 1990, service connection for the cause of death was denied, whereupon the appellant initiated this appeal and claimed that the veteran's death was a result of exposure to Agent Orange. The death certificate shows that the veteran died in July 1982 of cardiorespiratory arrest due to bronchopneumonia with severe pulmonary edema, and a significant condition was mediastinal malignant melanoma with bronchoesophageal fistula. The appellant asserts that the veteran's malignant melanoma was due to exposure to Agent Orange which resulted in the bronchoesophageal fistula which contributed to bronchopneumonia with severe pulmonary edema and resulted in cardiorespiratory arrest. The appellant has claimed a causal link between exposure to Agent Orange and the malignant melanoma. The appellant claims that the veteran's cause of death was a result of exposure to Agent Orange in service. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (1991); 38 C.F.R. § 3.312 (1994). The veteran's active duty included service in the Republic of Vietnam during the Vietnam era. The new regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6) (1994). The regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. § 3.309(e)(1994). The specified diseases are chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers, and soft- tissue sarcoma. Id. Further, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary has specifically determined that a presumption of service connection is warranted. Initially, the Board notes that malignant melanoma is not a disease for which the presumption of service incurrence based on exposure to certain herbicide agents in Vietnam may be granted under the applicable regulations. Thus, service connection for malignant melanoma on a presumptive basis is not warranted. The appellant, through her representative, also contends that there are medical opinions which believe that the veteran had Hodgkin's disease, lymphoma and cancer of the types recognized by the Secretary to be granted presumptive service connection. The veteran saw his local physician, A. R. Clowney, M.D., for treatment of upper respiratory symptoms in late June 1982. He was admitted to Warner Brown Hospital in El Dorado, Arkansas on June 28, 1982, with increased difficulty in swallowing. Dr. Clowney's report noted that the veteran appeared severely, acutely ill. The report included findings of rales throughout the pulmonary system and a chronic cough. The lymphatic system was negative. A handwritten notation was that the veteran had exposure to Agent Orange in war. The discharge summary from Highland Hospital indicated that the veteran's local physician in El Dorado saw a mediastinal mass suggestive of lymphoma and referred him to Highland Hospital for definitive diagnostic procedure. The record indicates that when the veteran was at Highland Hospital in Shreveport, LA, an X-ray showed a "huge anterior and posterior mediastinal mass." Upon review of the X- ray, C. J. Paine, M.D., noted a bilateral adenopathy and suggested that the "most likely etiology would be a lymphoma." In a later report, Dr. Paine gave an impression, based on clinical presentation, "to have lymphoma - probably Hodgkin's disease - probably nodular sclerosis, and it would appear to involve the mediastinum." Dr. Paine recommended emergency mediastinoscopy and frozen section. J. M. Whitaker, M.D. performed the mediastinoscopy with biopsy of mediastinal lymph node and his postoperative diagnosis was mediastinal mass, malignancy of epidermoid origin. The microscopic diagnosis was metastatic malignant melanoma and sections of the original biopsy were positive for melanin granules. The discharge summary, signed by C. D. Knight, M. D., reports that the mediastinoscopy showed "a malignant tumor, probably not a lymphoma, and permanent biopsy reports show that this was compatible with a melanoma." Dr. Paine advised chemotherapy and the veteran elected to be transferred to the VA Hospital for this therapy and the transfer occurred on July 8, 1982. Although the initial impressions were possibly lymphoma and/or Hodgkin's disease, after the mediastinoscopy with microscopic diagnosis of the biopsy, the definitive diagnosis was metastatic malignant melanoma. Further, the autopsy protocol did not include lymphoma or Hodgkin's disease in the final anatomical diagnoses. A note further stated that: "The post-mortem examination showed a single tumor mass in the mediastinum with extensive involvement of esophagus and adjacent organs. No other primary or metastic (sic) focus was seen." It is pure speculation that all findings were not reported. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit recently determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The service medical records indicate that the veteran had a lesion removed from his back in December 1967. The microscopic examination of the lesion, which did not extend to the surgical margins examined, diagnosed a basal cell carcinoma, completely excised. The service medical records are otherwise negative for any evidence of any complaints, diagnoses, or treatment for a skin disorder. The skin was noted as clear in October 1969. The clinical evaluation of the skin was normal at the examination in November 1970. The hospital summary of the VA Medical Center, Shreveport, Louisiana, for the period of July 8, 1982, until the veteran's death on July 31, 1982, noted that the veteran had been referred from Highland Hospital with a diagnosis of mediastinal mass suggestive of a malignant melanoma. The veteran gave a history of having a benign mole removed from his anterior chest wall approximately one year prior. He had no problems until May of 1982 when he experienced a gradual onset of dysphagia. He presented to his local medical doctor in El Dorado, Arkansas. A chest X-ray revealed a mediastinal mass with hyaline peritracheal adenopathy. The veteran was referred to Highland Hospital on June 30, 1982, where he had a mediastinoscopy and biopsy which found that he had a metastatic tumor suggestive of malignant melanoma. Also, special stains were positive for melanin. A chest X-ray on admission showed a large mediastinal mass with compression of the left mainstem bronchus. During the veteran's hospitalization, pathology slides from the mediastinal mass biopsy from Highland Hospital were reviewed by a Shreveport VA pathologist and his diagnosis was malignant tumor suggestive of malignant melanoma. Additionally, pathology slides from VA Medical Center in Mountain Home, Tennessee, of the excision of the left chest wall and left buttocks lesions were reviewed by Dr. Charn Nopajaroonsri, whose report was in agreement with the original report S-1287-81 dated 8/14/81, that both lesions represented benign intradermal nevi with a rare fossae of mild melanocytic atypea. A consultation report dated in October 1982 by the Director of the Armed Forces Institute of Pathology which reviewed the case stated the following: "No origin of the melanoma from the esophageal mucosa can be demonstrated. In the absence of another primary origin from the esophagus is probable. Another possibility is that the mediastinal lesion represents a metastasis from a skin primary which masqueraded as a nevus. The protocol states the [veteran] had multiple nevi, some of which were not examined microscopically." After a review of all of the evidence of record, we find that the evidence does not show that the veteran had an anatomical diagnosis of lymphoma and/or Hodgkin's disease at the time of death. We conclude that the objective evidence in this case, while showing that the veteran had a malignant melanoma, and multiple skin nevi, does not indicate a relationship between this disorder or a skin condition of multiple intradermal nevi and exposure to herbicides during military service. While the veteran has documented service in the Republic of Vietnam during the Vietnam era and has a "plausible" account of inservice exposure, the medical evidence does not show a causal connection between malignant melanoma or a skin condition of multiple intradermal nevi and exposure to herbicides in service. We have only the appellant's opinion of a causal connection and the record does not contain any evidence corroborating the appellant's claim. Personal statements made by the appellant, to the effect that the post-service condition of melanoma which caused the veteran's death is related to the alleged inservice exposure to herbicides, are of little probative value without corroborating medical evidence. While we do not doubt that she is sincere in her belief, she is not qualified to offer such an opinion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (A lay person is not qualified to make medical diagnoses). In view of the foregoing, service connection for malignant melanoma due to exposure to Agent Orange as the cause of the veteran's death is not warranted. ORDER Entitlement to service connection for the cause of the veteran's death as a result of exposure to Agent Orange has not been established. The benefit sought on appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.