Citation Nr: 20006986 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-06 086 DATE: January 28, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active service from May 1957 to April 1959. The Veteran died in September 2011. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 administrative decision issued by the Department of Veterans Affairs (VA), Regional Office (RO). The Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. The VLJ held the record open for an additional 30 days to allow the Appellant to submit supplemental evidence. A copy of the hearing transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2018). 38 U.S.C. § 7107 (a)(2) (2012).   Entitlement to service connection for the cause of the Veteran’s death is remanded. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310 (2012). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a) (2018). A service-connected disability will be considered as the principal (primary) cause of death when such disability, 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) (2018). A contributory cause of death must be shown to have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1) (2018). Careful consideration should be given to whether there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312 (c)(1) (2018). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310 (2012). The Appellant contends that the Veteran’s cause of death was due to the VA’s trimming the Veteran’s toenails with a dirty nail clipper, which then caused all his issues and, ultimately, his death. The Board notes that the Veteran was awarded service connection, effective July 2004, for his left big toe ulceration under the provisions of 38 U.S.C. § 1151, which governs benefits for persons disabled by VA treatment or vocational rehabilitation. At the time of his death, the Veteran was a patient at Dixie Regional Medical Center and service-connected for ulceration of the left big toe, and depression, associated with the ulceration. An amended death certificate issued in November 2019 lists the cause of the Veteran’s death as respiratory failure, due to coronary artery disease (CAD), due to aspiration pneumonia, due to chronic lower extremity cellulitis due to MRSA infection, and renal failure. Before his death, the record shows that in June 2011, he was seen for weeping open ulcers on the bilateral lower extremities. The attending clinician noted that the Veteran presented with cellulitis, watery drainage, and abscess, located on the bilateral lower extremity, that was present for approximately three days. The clinician also noted that “the [c]ellulitis and abscess ar[ose] from an unknown origin.” Routine microbiology testing of the day detected 3+ Staphylococcus aureus Methicillin resistance, and it was commented that: “[m]ethicillin-resistant S. aureus should be considered resistant to all available beta-lactam antibiotics, including penicillins, Beta-lactamase inhibitor combinations, cephems, and carbapenems.” Similarly, in July 2011, treatment notes indicate that the Veteran developed weeping open wounds and erythema on the bilateral lower legs around June 2011. The Veteran reported that “one month earlier, he had problems with his lower extremities and went to Dr. VG. and was given antibiotics for MRSA infection. It was noted that the Veteran, however, continued to do well, with the legs improving. The discharge summary noted the Veteran’s diagnoses: pulmonary embolism bilateral, renal failure, coronary artery disease, diabetes, GERD, peripheral neuropathy, sleep apnea, MRSA, cellulitis, venostasis ulcers, pneumonia, UTI, and Klebsiella. Treatment notes dated in September 2011, indicate that Staphylococcus aureus in aerobic and anaerobic bottles Methicillin resistance was detected. The record also contains an August 2015 letter from the Veteran’s treating physician, Dr. C. VG., DPM at Foot and Ankle Institute, who states that: the Veteran was under his care from 2008-2011, and during which time, he was treated multiple times for infections in his legs and/or feet. “He began having foot problems in 2004 and experienced [many] infections from that time until his passing in 2011. His wound and infection history included c.difficile and methicillin-resistant staph aureus. It is my opinion that these frequent infections affected his overall ability to fight infection. In my time with [the Veteran,] he was always very susceptible to infection and demonstrated a depressed immune response. It is reasonable to believe that this had an overall negative effect on his cardiovascular system. In December 2015, VA obtained a medical opinion regarding whether the Veteran’s left big toe ulceration disability affected his mobility and whether it is at least as likely as not that his mobility issues contributed to his heart condition and subsequent death. The examiner provided a negative opinion. However, as there is a new death certificate of record showing that the Veteran’s cause of death was attributed to more than just a heart disability, the opinion is incomplete. As there is no medical opinion of record addressing whether the Veteran’s service-connected left big toe ulceration and/or depression caused and/or aggravated his CAD, aspiration pneumonia, chronic lower extremity cellulitis, renal failure, and MRSA infection, a supplemental medical opinion is warranted. Accordingly, the issue is REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician for an addendum opinion. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should opine on the following: a. Whether the Veteran’s respiratory failure is at least as likely as not (a 50 percent or greater probability) related to his period of active service. b. Whether it is at least as likely as not that the Veteran’s respiratory failure, CAD, aspiration pneumonia, chronic lower extremity cellulitis, renal failure, and/or MRSA infection was proximately due to his service-connected left big toe ulceration and/or depression. c. Whether it is at least as likely as not that the Veteran’s respiratory failure, CAD, aspiration pneumonia, chronic lower extremity cellulitis, renal failure, and/or MRSA infection was aggravated beyond its natural progression, by his service-connected left big toe ulceration and/or depression. d. Whether it is at least as likely as not that the Veteran’s left big toe ulceration and/or depression proximately caused or contributed substantially or materially to cause death, or whether it combined to cause death, or that it aided or lent assistance to the production of death. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.