Citation Nr: 21003307 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-31 032 DATE: January 21, 2021 REMANDED Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1950 to July 1953. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied DIC based on service connection for the cause of the Veteran’s death. This decision was appealed in a notice of disagreement (NOD) received by VA in February 2014. A Statement of the Case (SOC) was issued by VA in August 2016. VA received the appellant’s Substantive Appeal (Form 9) in September 2016, declining a hearing before a member of the Board and perfecting the appeal. This claim was previously remanded in June 2017, April 2019, May 2020, and August 2020 Board decisions. Supplemental Statements of the Case (SSOC) were issued by VA in February 2019, December 2019, June 2020, and October 2020. 1. Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death is remanded. The Board deeply regrets further delay in deciding this claim; however, after a review of the evidence of record, the Board finds that another remand is necessary prior to adjudicating this claim to correct a duty to assist error and remedy a failure to comply with the Board’s August 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the most recent remand of this case in August 2020, the Board explicitly instructed that, on remand, the examiner must “address the appellant’s contentions that the Veteran’s residuals of a gunshot wound to the abdomen were the primary and secondary cause of the Veteran’s death.” Additionally, the examiner was instructed to address statements from the appellant and the Veteran’s daughter “indicating that the Veteran’s service-connected gunshot wounds and lumbar spine disability severely debilitated the Veteran, impacted his ability to get out of bed and move around, and contributed to his death.” A medical opinion was obtained in September 2020 to address these contentions. The examiner failed to address these specific contentions in the opinion, noting repeatedly that the Veteran’s high body mass index (BMI) contributed to his type 2 diabetes mellitus, which contributed to a weakened immune system, unable to adequately deal with a urinary tract infection, which developed into septic shock, which led to the direct cause of death, respiratory failure. While the examiner seems to have established a long and complex causal chain linking the Veteran’s death to a high BMI and obesity, the examiner did not address whether the service-connected gunshot wound residuals and orthopedic disabilities contributed to the Veteran’s having developed a high BMI and obesity. The Agency of Original Jurisdiction (AOJ) noted this failure to comply with the Board’s prior remand instruction and requested an addendum opinion in October 2020. In an October 2020 addendum opinion, the examiner again explained in great detail the causal chain from the Veteran’s untreated urinary tract infection to death. The examiner noted the role the Veteran’s nonservice-connected type 2 diabetes mellitus, and its effects on the neurological and immune systems, played in his eventual death. The examiner explained that the Veteran’s “diet and lifestyle” were what caused him to develop a very high BMI initially, which later caused the development of type 2 diabetes mellitus and other nonservice-connected disabilities, which along with natural aging, contributed to the development of the urinary tract infection and its subsequent complications. While the opinion was very detailed in its explanation, it did not address the important contention from the Veteran’s family, that the high BMI and obesity, which begin the causal chain in the examiner’s reasoning, was caused by the Veteran’s inability to exercise due to his service-connected gunshot wound residuals and his service-connected orthopedic injuries. What is inadequate about both opinions is that they fail to consider whether any of the appellant’s service-connected disabilities, whether singularly or jointly, at least as likely as not was the cause of his high BMI and obesity, which would then have served as an intermediary causal step between his service-connected disabilities and a nonservice-connected disability that contributed to his cause of death. Considering this, the Board finds that the Board’s August 2020 remand instruction has not been substantially complied with, and as such, finds that further remand to obtain an addendum medical opinion is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To clarify the contentions the Board is ordering the medical examiner to address, the Board notes that the contentions raised by the Veteran’s family are understood by the Board to be a claim based on obesity being an intermediary step between the service-connected gunshot wound residuals and orthopedic disabilities and/or the service-connected PTSD, and the Veteran’s type 2 diabetes mellitus which was noted to have contributed to the Veteran’s cause of death. In plain terms, the contention is that the service-connected disabilities caused an increasing lack of mobility, due to residual pain and range of motion loss, which altered the Veteran’s lifestyle, limiting his ability to exercise, which in turn, caused his increased BMI and obesity, and eventually his type 2 diabetes mellitus. Additionally, the Veteran’s family members have asserted that his service-connected PTSD caused his development of type 2 diabetes mellitus by hindering his ability due to symptoms such as anxiety and depression. These theories of entitlement to compensation for service connection for the cause of the Veteran’s death are built upon a 2017 VA General Counsel opinion which determined that a service-connected disability might be the proximate cause of another disability in cases where obesity, which is not a condition for which service-connection can be granted, serves as an intermediary step between the service-connected disability and the claimed disability. VAOPGCPREC 1-2017. VA defines proximate cause as a cause that directly produces an event and without which the event would not have occurred. VAOPGCPREC 1-2017 (relying on past General Counsel precedential decisions and Black's Law Dictionary, 7th ed. 1999). VA further clarifies that “[w]hen there are multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action.” VAOPGCPREC1-2017 (citing Shyface v. Sec'y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). VA has also determined that the question of proximate cause is basically one of fact for adjudication personnel to decide. VAOPGCPREC1-2017. This theory of entitlement based on an intermediary step has also been extended by the Court to claims based on aggravation. See Walsh v. Wilkie, 18-0495, 5-7 (February 24, 2020) (holding that VAOGCPREC 1-2017 does not prohibit inquiry into whether a service-connected disability aggravates the intermediate step under 38 C.F.R. § 3.310(b)). On remand, the examiner must specifically address these contentions which revolve around obesity as an intermediary step. The examiner must opine as to whether the Veteran’s service-connected gunshot wound residuals and service-connected orthopedic injuries impacted his ability to exercise such that they at least as likely as not caused him to have a high BMI and develop obesity, which was then the proximate cause of the development of type 2 diabetes mellitus. Additionally, the examiner must opine as to whether the Veteran’s service-connected PTSD symptoms caused the development of his diabetes by preventing him from maintaining a healthy diet an exercise regimen. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion as to whether it is at least as likely as not (50 percent probability or greater, that the Veteran’s service-connected disabilities (singly or jointly) caused his death, contributed substantially or materially to the cause of death, or aided or lent assistance to production of death. The examiner must include in this opinion a discussion of obesity and a high body mass index (BMI) as an intermediary step between the service-connected disabilities and the nonservice-connected disabilities that caused, contributed substantially to, or aided or lent assistant to production of death. The examiner should be provided access to the claims file. Specifically, the examiner’s opinion should answer the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected gunshot wound residual disabilities and his service-connected orthopedic disabilities (singly or jointly) caused him to be unable to exercise such that he developed obesity and a high BMI and that this obesity at least as likely as not was the proximate cause of the Veteran’s type 2 diabetes mellitus? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected PTSD symptoms such as depression and anxiety caused him to be unable to maintain a healthy lifestyle, including exercise and healthy diet, such that he developed obesity and a high BMI and that this obesity at least as likely as not was the proximate cause of the Veteran’s type 2 diabetes mellitus? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.