12-17 545 ( 2018 )

Citation Nr: 1808265
Decision Date: 02/08/18 Archive Date: 02/20/18
DOCKET NO. 12-17 545 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Robert V. Chisolm, Attorney
ATTORNEY FOR THE BOARD
T. M. Gillett, Counsel
INTRODUCTION
The Veteran served on active duty from December 1957 to December 1983. He died in March 2008. The appellant seeks surviving spouse benefits.
This case comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
In June 2016, the Board denied service connection for the cause of the Veteran's death. The Veteran appealed that issue to the United States Court of Appeals for Veterans Claims. In a July 2017 Memorandum Decision, the Court vacated the Board's June 2016 decision and remanded the appellant's claim to the Board.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
FINDINGS OF FACT
1. The Veteran died in March 2008 as a result of sepsis, due to or as a consequence of respiratory failure, due to or as a consequence of a pulmonary embolism, due to or as a consequence of a colostomy takedown.
2. At the time of the Veteran's death, gastric cancer was listed as a significant contributing condition to the Veteran's death.
3. At the time of the Veteran's death, the Veteran was service connected for a duodenal ulcer.
4. It is at least as likely as not that the Veteran's service-connected duodenal ulcer was caused by an in-service helicobacter pylori (H. pylori) infection that also caused the gastric cancer that contributed to the Veteran's death.
CONCLUSION OF LAW
The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.312 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. That determination will be made by exercising sound judgment, without recourse to speculation, after a careful analysis of all the facts and circumstances surrounding the death. 38 C.F.R. § 3.312(a) (2017).
A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2017). Service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017).
The Veteran died in March 2008. On the Veteran's death certificate, an examiner wrote that the Veteran died as a result of sepsis, due to or as a consequence of respiratory failure, due to or as a consequence of a pulmonary embolism, due to or as a consequence of a colostomy takedown. The examiner also listed gastric cancer as a significant contributing condition to the Veteran's death.
The appellant contends that the Veteran's gastric cancer resulted from an H. pylori infection that the Veteran incurred during service. As proof of that contention, the appellant has asserted that the Veteran's service-connected duodenal ulcer disability was caused by the in-service H. pylori infection.
Briefly reviewing the evidence, in a December 1957 service entrance examination report, a service examiner reported no findings indicating the presence of gastric cancer, a duodenal ulcer, or an H. pylori infection. In an April 1960 service medical record, the Veteran reported experiencing upper abdominal pain with nausea. Subsequent service medical records dating from May 1960 through March 1962 indicate recurrence of abdominal pain. In a March 1962 service medical record, a service examiner diagnosed a duodenal ulcer. Subsequent service medical records indicate treatment for a duodenal ulcer until the Veteran's December 1983 discharge from service.
A January 1984 rating decision established service connection for duodenal ulcer, and assigned a 10 percent rating, effective January 1, 1984.
Post-service treatment records indicate treatment for gastrointestinal disability symptomatology. In a February 2007 private treatment record, a private examiner diagnosed gastric cancer. The examiner noted that an upper endoscopy revealed a single, cratered, chronic, malignant-appearing ulcer in the gastric body. The examiner indicated that a biopsy showed the gastric body to be a moderately differentiated adenocarcinoma and confirmed the presence of H. pylori.
In a July 2014 VA medical opinion, a VA examiner indicated that the Veteran's gastric cancer was caused by an H. pylori infection.
In a January 2018 private medical opinion, a private examiner reported reviewing the entire claims file. Having done so, the examiner opined that it was at least as likely as not that the Veteran developed an H. pylori infection during service. The examiner noted that the Veteran developed gastric ulcer-like symptoms, such as dyspepsia, within two-and-a-years of his lengthy term of service. The examiner indicated that the symptoms were the strongly suggestive of an H. pylori infection. The examiner noted that the Veteran both served in Asia and worked with those who had served in Asia throughout service. The examiner stated that studies showed that, as of 2017, the H. Pylori infection rate for individuals in Asia was between 40 and 70 percent. The examiner further indicated that the infection rate for individuals in North America was 35 percent. The examiner noted that H. Pylori infection was the main cause of chronic gastritis, such as that experienced by the Veteran throughout service, and was the primary driving cause of both peptic ulcer disease and gastric cancer. The examiner opined that the Veteran's service-connected duodenal ulcer more likely than not was caused by an in-service H. Pylori infection. The examiner further stated that an in-service H. Pylori infection more likely than not directly caused the Veteran's gastric cancer.
The evidence of record indicates that an H. Pylori infection that the Veteran incurred during service caused both his service-connected duodenal ulcer and the gastric cancer that significantly contributed to his death. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017).
ORDER
Entitlement to service connection for the cause of the Veteran's death is granted.
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Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs