Citation Nr: 1644323 Decision Date: 11/23/16 Archive Date: 12/02/16 DOCKET NO. 12-32 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to dependency and indemnity compensation (DIC) (based on service connection for the cause of the Veteran's death). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from October 1985 to March 1993. The Veteran died in February 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO); it is now in the jurisdiction of the Roanoke, Virginia, RO. In August 2016, a Central Office Board hearing was held before the undersigned; a transcript of the hearing is in the record. FINDINGS OF FACT 1. The Veteran died in February 1998; his death certificate lists the immediate cause of death as metastatic gastric cancer. 2. The evidence is at least in equipoise as to whether the Veteran's metastatic gastric cancer manifested during active service or within a one-year presumptive period thereafter. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.302, 3.307, 3.309, 3.312, 4.114, Diagnostic Code 7343 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of VA's notice and assistance requirements on the matters; any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The death of a Veteran will be considered service connected when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or, that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (including malignant tumors) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). All malignant neoplasms of the digestive system (exclusive of skin growths) are entitled to a 100 percent rating until six months following the cessation of any therapeutic procedures (such as surgery or chemotherapy.) 38 C.F.R. § 4.114, Diagnostic Code 7343. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. It is not in dispute that (1) on examination at separation from service in February 1993, his hemoccult test was negative; (2) a professional (military and civilian) colleague provided a (credible) written statement attesting to his observation that the Veteran frequently reported gastric complaints prior to separation from active service; (3) that following service he was treated for symptoms of heartburn; (4) that in August 1994 a hemoccult test was positive; (5) that a gastric mass, later diagnosed as a malignant high-grade gastrointestinal stromal tumor, was surgically removed in September 1994; (6) that the Veteran was subsequently treated for recurrence of his gastric cancer; and that (7) the gastric cancer was his immediate cause of death. What remains to be resolved is whether the gastric cancer that ultimately caused the Veteran's death is related to service, to include whether it onset during active service or within the one-year presumptive period following separation. The appellant provided a January 2011 letter from one of the Veteran's treating physicians who opined that the size of the Veteran's tumor on 1994 diagnosis was so large that it indicated onset three to four years prior to diagnosis. The treating physician thus concluded that the tumor first manifested during the Veteran's active service. A VA medical opinion was obtained in May 2012. The VA examiner, a nurse practitioner, noted that treatment for heartburn between August and October 1993 (within the one-year presumptive period), but explained that such symptoms were not typically the presenting symptoms for gastric stromal tumor and noted the heme negative stools at separation from service. The VA examiner reported that she contacted the private treating physician, who was unable to provide clinical evidence in support of his opinion that the tumor size upon diagnosis indicated onset 3-4 years prior. The VA examiner further reported that she had consulted with a pathologist, who opined that "it was possible" that the Veteran's tumor could be attained in a short period (i.e., that it developed entirely outside the one-year presumptive period after separation from active service). In August 2016, the Veteran's treating physician provided an updated favorable nexus opinion, reiterating his prior conclusions. The Board finds that the evidence is at least in equipoise with regard to whether the Veteran's gastric cancer onset during military service as there are competent medical opinions both for and against that finding. However, even if onset during service were not in equipoise, entitlement to service connection for the cause of the Veteran's death would be established if the malignant gastric tumor manifested anytime within one year following separation (i.e., by March 1994). Thus, for the Veteran's gastric cancer to fall completely outside the presumptive period, the medical evidence would have to demonstrate that his cancer more likely than not initially manifested and grew to what was apparently a significant size in five months. The VA pathologist's opinion that such development is "possible" (necessarily implying that a longer period of growth before detection is likewise "possible") falls well short of that requirement. Thus, to the extent that the treating physician opined that the size of the Veteran's tumor upon detection indicates that it first manifested well before diagnosis in August 1994 (i.e., at least as early as during the one-year presumptive period ending in March 1994), the Board finds that the VA pathologist's opinion does not contradict such conclusion (i.e., it is not a negative opinion with respect to onset during the one-year presumptive period). Consequently, the Board finds that the medical evidence addressing onset during the presumptive period for malignant tumors weighs in favor of the appellant's claim. As the evidence is at least in equipoise, the Board finds that service connection should be granted for the Veteran's cause of death for the purpose of entitlement to DIC benefits. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs