Citation Nr: 20036749 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 18-23 530 DATE: May 28, 2020 ORDER Dependency and Indemnity Compensation (DIC)) under the provision of 38 U.S.C. § 1318 is denied. REMANDED DIC based on service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT The Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) was not continuously rated as totally disabled for a period of not less than 5 years from the date of his discharge or release from active duty, (iii) was not a former prisoner of war. CONCLUSIONS OF LAW The criteria have not been met for DIC under the provisions of 38 U.S.C. § 1318. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to November 1952 with service in Korea. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board takes pause here to express its deep condolences to the Appellant for the passing of her husband, the Veteran, and expresses sincere gratitude for his honorable service to the United States of America. DIC under the provision of 38 U.S.C. § 1318 is denied. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran’s surviving spouse in the same manner as if the cause of the veteran’s death were service connected, even though the veteran died of non-service-connected causes, as long as death was not the result of the veteran’s willful misconduct and, at the time of death: (1) the veteran had been rated (or was entitled to have been rated) as totally disabled based on service-connected disabilities for a continuous period of at least 10 years immediately preceding death; OR (2) was rated totally disabled continuously since release from active duty and for a period of not less than 5 years immediately before death; OR (3) was rated as totally disabled for a continuous period of at least one year immediately before death IF the veteran was a former prisoner of war who died after September 30, 1999. The “totally disabled” rating in the three options listed above may be either schedular or based on unemployability. 38 U.S.C. § 1318. In this case, the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) was not continuously rated as totally disabled for a period of not less than 5 years from the date of his discharge or release from active duty, (iii) was not a former prisoner of war. For the reasons outlined above, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. The law is dispositive of this claim and it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 1318. REASONS FOR REMAND Service connection for the cause of the Veteran's death is remanded. The Appellant has asserted that as a result of the Veteran’s service-connected cold injury residuals, the Veteran fell in November 2012, and gained substantial weight as a result of his sedentary lifestyle which was directly due to the service-connected cold injury residuals, and that his weight gain led to the conditions that contributed to the Veteran’s death. See March 2020 Board hearing; November 2018 correspondence; July 2017 Statement is Support of Claim; and July 2016 Statement in Support of Claim. Service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity that was caused or aggravated by a service-connected disability. See Walsh v. Wilkie Prec. Op. No. 18-0495 (2-24-2020); see also VAOPGCPREC 1-2017 (January 6, 2017). Here, the Board finds the March 2018 VA medical opinion did not address whether the Veteran’s service-connected disabilities led to his obesity and whether obesity caused or aggravated other conditions that ultimately caused or contributed to the Veteran’s death. Additionally, the Board finds no VA or private treatment records within the claims file from November 2008 to August 2014, which would include the timeframe in which the November 2012 fall occurred. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received, to include his treatment by his primary care provider. The Appellant must assist in the matter by identifying the Veteran’s private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. Obtain the Veteran’s VA treatment records from November 2008 to August 2014. 4. After the above development is completed, the AOJ should obtain a VA medical opinion to determine the nature and likely cause of his death. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s CHF exacerbation, severe pulmonary hypertension, and severe COPD are proximately due to, or the result of, or aggravated (permanently worsened beyond normal progression) by the Veteran’s service-connected cold injury residuals. In rendering this decision, the examiner MUST specifically state: (i) Were the Veteran’s service-connected cold injury residuals at least as likely as not (50% chance or greater) the CAUSE of the Veteran becoming obese? (ii) Did obesity at least as likely as not (a 50% or greater chance) CAUSE or AGGRAVATE the CHF exacerbation, severe pulmonary hypertension, and severe COPD? (aggravation is any increase in the natural progression of the illness) and (iii) Would the CHF exacerbation, severe pulmonary hypertension, and severe COPD not have occurred, BUT FOR the obesity? (b.) The Veteran’s death certificate lists CHF exacerbation, severe pulmonary hypertension, and severe COPD as an immediate cause of death. It also lists circulatory failure due to CHF as another significant condition contributing to the cause of death. (c.) If the answer to (a.) above is in the affirmative, then, is it at least as likely as not (a 50% or greater chance) that obesity was a CONTRIBUTORY CAUSE of the Veteran’s death. 5. The examiner’s attention is drawn to the following records (the following is not intended to be a substitute for your review of the claims folder): (a.) The March 2020 Board hearing testimony of the Appellant. (b.) The November 2018 Correspondence from the Appellant. (c.) The March 2018 VA examination. (d.) The July 2017 Statement in Support of Claim from the Appellant. (e.) The July 2016 Statement in Support of Claim from the Appellant. (f.) The examiner should address the Appellant’s report that the Veteran’s physical activity decreased after a November 2012 fall due to his service connected cold injury residuals and that as a result of his cold injury residuals worsening and causing him to decrease his activity, the (5 feet 6 inches tall) Veteran gained substantial weight to the point that he weighed 205 pounds. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.