13-23 799
13-23 799
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served Jan 1966–Jan 1968, including ~12 months in Vietnam; awarded combat decorations; presumed exposed to Agent Orange.
- Veteran died March 2011; death certificate lists adenocarcinoma of the stomach (gastric cancer) as underlying cause leading to sepsis and respiratory arrest.
- Surviving spouse (Appellant) applied for Dependency and Indemnity Compensation (DIC) in May 2011, claiming gastric problems beginning in service, a post-service partial gastrectomy (circa 1970–1973), and that gastric cancer was related to in‑service herbicide exposure.
- RO denied DIC; Board remanded in 2015 for development and later held a hearing; Board found substantial compliance with remand directives.
- Medical evidence: gastric cancer diagnosed in Jan 2011; service records show no contemporaneous gastric cancer/ulcer treatment or compensable symptoms within one year post‑service; no competent medical opinion links gastric cancer to service or Agent Orange; an earlier VA examiner (2003) found peptic ulcer disease not related to Agent Orange.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to DIC based on service connection for Veteran's death (gastric cancer) | Appellant: Veteran had stomach problems from service, underwent post‑service surgery for ulcers, and cancer was caused by in‑service herbicide exposure | VA: No presumptive link between Agent Orange and gastric cancer; no evidence of compensable gastric disease in service or within one year post‑service; no competent medical nexus opinion | Denied — preponderance of evidence against service connection for cause of death |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (procedural remand compliance)
- Allday v. Brown, 7 Vet. App. 517 (Board must provide adequate reasons and bases)
- Scott v. McDonald, 789 F.3d 1375 (issue exhaustion and liberal reading of filings)
- Walker v. Shinseki, 708 F.3d 1331 (requirements for continuous symptom or manifestations within one year for presumptive continuity of symptomatology)
- Combee v. Brown, 34 F.3d 1039 (direct theory of causation for service connection)
- Layno v. Brown, 6 Vet. App. 465 (lay evidence insufficient to establish medical etiology)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt rule)