**UNITED STATES COURT OF VETERANS APPEALS**

No. 90-1328

[Vera E. Schoonover, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Edward J. Derwinski,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals and

On Appellee\'s Motion for Summary Affirmance

(Submitted March 5, 1992 Decided August 25, 1992 )

*Douglas K. Davis* (non-attorney practitioner) was on the brief for
appellant.

*James A. Endicott, Jr.*, General Counsel, *Barry M. Tapp*, Assistant
General Counsel, *Pamela L. Wood*, Deputy Assistant General Counsel, and
*John D. McNamee* were on the pleadings for appellee.

Before NEBEKER, *Chief Judge*, KRAMER and IVERS, *Associate Judges*.

IVERS, *Associate Judge*: Appellant, Vera E. Schoonover, appeals from a
July 18, 1990, Board of Veterans\' Appeals (BVA or Board) decision which
upheld the denial for service connection for the death of her veteran
husband, thereby denying death and indemnity compensation (DIC) benefits
for appellant. For the reasons set forth below, the Court vacates the
BVA decision and remands the case to the Board for readjudication
consistent with this opinion.

**I. Background**

Veteran, James F. Schoonover, served in the United States Army from
January 17, 1941, to June 30, 1967. R. at 1. During his Army career,
veteran spent fifteen months in combat in the Southwest Pacific during
World War II. R. at 24. On July 18, 1952, veteran underwent a surgical
excision of a mole on his face. The diagnosis was \"\[b\]asal cell,
carcinoma, site unknown.\" R. at 50. Captain Marvin B. Rodney, Medical
Corps, stated in his report that \"\[t\]here is some question that this
lesion is completely excised.\" *Id*. This turned out to be the first of
many skin treatments involving the removal of basal cell carcinomas from
veteran\'s skin.

On January 11, 1954, veteran was diagnosed as having otosclerosis. R. at
89. Otosclerosis is the \"growth of spongy bone in the inner ear where
it gradually obstructs the oval window or round window or both and
causes progressively increasing deafness.\" [Webster\'s Medical Desk
Dictionary]{.smallcaps} 503 (1986). On July 16, 1956, veteran had a cyst
removed from his left ear lobe. R. at 123. On May 19, 1967, veteran had
a papule on his left cheek which was diagnosed as a basal cell
epithelioma. R. at 245.

Prior to discharge, veteran\'s Physical Profile Record listed him as
having high blood pressure and hearing loss, mild, bilateral. His duty
was not to involve strenuous physical activity. R. at 246. After
discharge, veteran underwent a Veterans\' Administration (now Department
of Veterans Affairs) (VA) examination. He was diagnosed as having
\"\[h\]ypertension, essential, presently treated, presently
normo-tensive,\" \"arteriosclerosis, generalized, mild,\"
\"arteriosclerotic heart disease, with history of old right bundle
branch-block, Class I-A,\" and \"albuminuria - mild - unknown cause.\"
R. at 262. On October 17, 1967, veteran was granted service connection
by the VA for \"generalized arteriosclerosis and essential
hypertension\" evaluated at twenty-percent disabling, and for
\"defective hearing, bilateral, conductive,\" at ten-percent disabling.
R. at 368-69.

From November 12, 1969, to October 4, 1976, veteran periodically
received treatment for basal cell carcinomas. R. at 269, 271, 284, 305,
315, 333, 345, 352. On May 25, 1977, veteran underwent a special
cardiovascular examination. R. at 372. Veteran was diagnosed with
\"\[e\]ssential hypertension, moderate; controlled on treatment\" and
\"\[m\]inimal peripheral arteriosclerosis.\" *Id*. In March 1986,
veteran received treatment for adenocarcinoma and a liver condition. R.
at 396-98. On July 25, 1986, a pigmented skin lesion was found near his
left ear which was diagnosed as a nodular melanoma. R. at 456. From
October 24, 1986, to November 12, 1986, veteran received treatment for
the nodular melanoma including a \"wide excision of the melanoma with
partial left auriculectomy, left superficial parotidectomy, left
periauricular neck dissection and advancement flap reconstruction.\" R.
at 402.

Veteran underwent a VA examination on October 14, 1987. R. at 377-90. As
a result of that examination, veteran\'s disability rating increased for
arteriosclerotic heart disease with atrial fibrillation and hypertension
to sixty percent, and to thirty percent for his bilateral defective
hearing. R. at 391. Veteran had a total rating of seventy-percent
disabled. R. at 392. In April 1988, veteran began receiving treatment
for melanoma, metastatic to his lungs. R. at 426. By August 22, 1988,
veteran\'s melanoma metastasized to his brain. R. at 433.

On September 16, 1988, veteran died. His death certificate listed the
cause of death as \"brain metastases\" of \"\[one\] month\[\'s\]\"
duration \"as a consequence of \[a\] malignant melanoma\" of
approximately \"\[two\] years.\" R. at 435. Under \"\[o\]ther
significant conditions,\" or \"conditions contributing to death but not
related to cause given,\" \"essential hypertension\" and \"chronic
atrial fibrillation\" were noted. *Id*.

On October 4, 1988, appellant filed an Application for DIC or Death
Pension by Surviving Spouse or Child. R. at 437. Medical records of the
veteran were requested by the VA on October 4, 1988. R. at 436. The
rating board, in a February 10, 1989, rating decision, denied service
connection for veteran\'s death. R. at 436. Appellant filed her Notice
of Disagreement on August 23, 1989. R. at 447-48. Additional medical
records were requested by the VA on September 5, 1989. R. at 449. The
rating board confirmed the previous rating on November 16, 1989. R. at
505. A Statement of the Case was sent to appellant on November 30, 1989.
R. at 507-10. The denial for service connection for the death of the
veteran was upheld by the BVA on July 18, 1990. Appellant made a timely
appeal to this Court. The Court has jurisdiction to hear this case
pursuant to 38 U.S.C. § 7252 (formerly § 4052).

**II. Analysis**

**A. Service Connection for Death**

Service connection for death is governed under 38 U.S.C. § 1310
(formerly § 410). Guidelines for determining whether death is
serviced-connected are found in 38 C.F.R. § 3.312 (1991). In order for a
surviving spouse, children, or parents to recover DIC benefits from the
VA, section 1310 requires that the veteran\'s death must occur after
December 31, 1956, and that he must have been \"discharged or released
under conditions other than dishonorable from the period of active
military, naval, or air service in which the disability causing such
veteran\'s death was incurred or aggravated,\" or \"died while in the
active military, naval, or air service.\"

Here, veteran was honorably discharged and died after December 31, 1956.
The only question remaining is whether his service-connected disorders
either directly caused or contributed to his death. According to §
3.312(a), a veteran\'s death will be considered to have resulted from a
service-connected disability \"when the evidence establishes that such
disability was either the principal or a contributory cause of death.\"

At the time of veteran\'s death, he had a combined total disability
rating of seventy percent, for, among other things, arteriosclerosis and
hypertension. The death certificate listed brain metastases as the
immediate cause of death. However, the death certificate also listed
essential hypertension and chronic atrial fibrillation as \"conditions
contributing to death but not related to cause given.\" R. at 435. Under
38 C.F.R. § 3.312(b), the Board is correct that his service-connected
disabilities were not the principal cause of death. However, 38 C.F.R. §
3.312(c) sets forth instances when the service-connected disabilities
are contributory causes of death, and thus, if found, service connection
should be granted. In the instant case, the Board did not fully address
why veteran\'s service-connected disorders did not play a role in his
death. Appellant contends that her husband\'s service-connected
arteriosclerotic heart disease with atrial fibrillation and hypertension
contributed to his death. In addressing this claim, the Board stated:

> To establish that a service-connected condition contributed to death,
> the evidence must demonstrate that it substantially or materially
> weakened the veteran\'s health to the point that he was less capable
> of resisting the disease which caused his death.
>
> The record discloses that the veteran experienced no significant
> chronic shortness of breath or chest pain or any significant
> limitations in activity because of arteriosclerosis. In addition,
> hypertension remained well controlled over the years; occasional
> episodes of increased blood pressure were soon brought under control.
> The terminal hospital report makes no reference to problems with
> management for the veteran\'s heart disease or hypertension.
>
> The medical evidence, in this case, shows that malignant melanoma was
> so overwhelming that it produced the veteran\'s death irrespective of
> coexisting service-connected heart disease or hypertension. The
> evidence does not raise a reasonable doubt or otherwise warrant
> allowance of the appeal.

*Vera E. Schoonover*, BVA 90-2451, at 3-4 (Jul. 18, 1990). Although the
melanoma was the direct cause of the death, it took over two years
before the cancer metastasized to veteran\'s brain. The Board\'s
conclusory statement that the \"malignant melanoma was so overwhelming
that it produced the veteran\'s death irrespective of coexisting
service-connected heart disease or hypertension\" is not clearly
substantiated in the record. According to *Colvin v. Derwinski*, 1
Vet.App. 171, 175 (1991), \"BVA panels may consider only independent
medical evidence to support their findings.\" Although the
service-connected cardio-vascular condition did not cause the veteran\'s
death, the Board did not reference any evidence of record to the effect
that such condition, over time, did not contribute to the cause of
death. \"If the medical evidence of record is insufficient, or in the
opinion of the BVA of doubtful weight or credibility, the BVA is always
free to supplement the record by seeking an advisory opinion, . . . or
\[quoting\] recognized medical treatises in its decision that clearly
support its ultimate conclusions.\" *Id; Hatlestad v. Derwinski,* 2
Vet.App. \_\_\_, \_\_\_, No. 90-103, slip op. at 8 (U.S. Vet.App. July
8, 1992) (medical treatises must be quoted in sufficient length so
context is able to be determined). Instead, the Board\'s discussion
dealt solely with direct causation. Here, because the veteran\'s
service-connected disorders involved \"vital organs,\" a more detailed
discussion should have been provided under 38 C.F.R. § 3.312(c)(3). That
section states:

> Service-connected diseases or injuries involving active processes
> affecting vital organs should receive careful consideration as a
> contributory cause of death, the primary cause being unrelated, from
> the viewpoint of whether there were resulting debilitating effects and
> general impairment of health to an extent that would render the person
> materially less capable of resisting the effects of other disease or
> injury primarily causing death. Where the service-connected condition
> affects vital organs as distinguished from muscular or skeletal
> functions and is evaluated as 100 percent disabling, debilitation may
> be assumed.

The Board erred by not addressing this part of the regulation in its
decision. Arguably appellant\'s seventy-percent combined
service-connected disorders could have rendered veteran \"materially
less capable of resisting the effects of other disease or injury
primarily causing death.\"

**B. Direct Service Connection**

Although this case is being remanded for further adjudication as to
contributory cause of death, the Court notes that veteran died from
brain metastases which were secondary to lung metastases which were
secondary to a malignant melanoma. Malignant melanoma is \"a tumor of
high malignancy that starts in a black mole and metastasizes rapidly and
widely.\" [Webster\'s Medical Desk Dictionary]{.smallcaps} 420. Veteran
was first treated for a basal cell carcinoma, a form of skin cancer, in
1952, while in service. The record shows periodic treatment for basal
cell carcinomas and other skin-related conditions from service until his
death.

According to the February 10, 1989, rating decision, veteran had never
filed a claim for service connection for his skin carcinomas. R. at 445.
Veteran\'s repeated bouts with skin cancer were never addressed by the
Board in its decision, yet medical treatment for his condition is
documented throughout the record. Because the record is replete with
references to treatment for carcinoma and other skin related conditions
and because the primary cause of death is related to a skin condition,
the Board, on remand may wish to examine the issue of service connection
for the primary cause of death while exploring the contributory causes.
*See generally Akles v. Derwinski*, 1 Vet.App. 118 (1991) (Secretary of
Veterans Affairs has an obligation to ensure that veteran is informed of
all benefits which he may be entitled to receive); *Douglas v.
Derwinski*, 2 Vet.App. 103, 110 (1991) (remanded in part for the BVA to
consider the issue of direct service connection for appellant\'s
carcinoma based on excessive exposure to the sun during his tenure as a
deckhand in the Pacific Theater), *aff\'d* *Douglas v. Derwinski*, 2
Vet.App. \_\_\_,\_\_\_, No. 90-678, slip at 7-8 (U.S. Vet. App. May 21,
1992). *Cf. Murphy v. Derwinski*, 1 Vet.App. 78, 82 (1991) (remanded in
part for the BVA to provide reasons or bases why veteran\'s previous
service-connected cancer was not causally connected to the cancer that
directly caused his death).

**III. Conclusion**

The July 18, 1990, BVA decision is VACATED and REMANDED to the Board for
further development and reconsideration of all relevant evidence,
issues, and regulations in a manner consistent with this opinion.