Citation Nr: A21020288 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 190903-29644 DATE: December 20, 2021 ORDER Entitlement to service connection for coronary artery disease, status-post myocardial infarction (CAD), secondary to service-connected frostbite of the bilateral feet on a causation basis, with obesity as an intermediate step, on a substitution basis, is granted. Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran's CAD is caused by his obesity which was caused by his service-connected frostbite of the bilateral feet and CAD would not have occurred but for obesity caused by his service-connected frostbite of the bilateral feet. 2. The evidence is at least evenly balanced as to whether the Veteran's service-connected CAD was a contributory cause of death. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD, secondary to service-connected frostbite, with obesity as an "intermediate step," on a substitution basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; VAOPGCPREC 1-2017 (Jan. 6, 2017). 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. § 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1948 to March 1953. The appellant is his surviving spouse. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a petition to reopen a claim for service connection for CAD. The RO also denied service connection for the cause of the Veteran's death. In August 2016 the appellant filed a notice of disagreement (NOD) and in August 2016 the RO issued a statement of the case (SOC). In October 2016 the Veteran timely filed a substantive appeal (via VA Form 9). In a May 2018 decision, the Board granted the appellant's petition to reopen a claim for service connection for CAD. The Board then denied entitlement to service connection for CAD for accrued benefits purposes and entitlement to service connection for the cause of the Veteran's death. The appellant appealed the Board decision to the U.S. Court of Appeals for Veterans' Claims (Court) and in November 2018 while the matter was pending before the Court, the appellant's attorney and VA's General Counsel filed a joint motion for partial remand (JMPR). In December 2018 the Court granted the parties' motion, vacated the May 2018 Board decision, and remanded the matter for action consistent with the JMPR. In July 2019 and again in October 2019 the Board remanded the appellant's claim for additional development. As the benefits sought are being granted in full, consideration of whether the agency of original jurisdiction (AOJ) complied with the Board's remand instructions is unnecessary. As a final preliminary matter, in April 2016 the appellant submitted an Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (VA Form 21-534) which is considered to be a request for substitution pursuant to 38 C.F.R. § 3.1010(c)(2). The AOJ did not address the appellant's substitution request and the claim has been characterized as an accrued benefits claim. However, both the agency of original jurisdiction and the Board have conducted additional development and considered evidence added to the claims file following the Veteran's death. Adjudication of an accrued benefits claim is limited to consideration of evidence in the file at date of death and substitution claims, by contrast, allow for the submission of new evidence following a veteran's death. See 38 U.S.C. § 5121(a) (regarding accrued benefit claims); 38 C.F.R. § 3.1010(f)(3). Considering the above procedural history, the Board finds that there has been an implicit substitution of the appellant as the claim and will therefore consider the claim for CAD on a substitution basis. 1. CAD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). The Board points out that although obesity is not a disability for VA compensation purposes, obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. See also Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (affirming the Board's decision that service connection is not warranted for obesity as it is not in and of itself a disability for VA purposes, but not addressing VAOPGCPREC 1-2017). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disability must have caused the veteran to become obese; (2) the obesity as a result of the service-connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability. Id. A June 2004 VA examiner opined that the Veteran's CAD is unrelated to the frostbite of his bilateral feet as it first manifested 49 years after the Veteran experienced frostbite, and it is most likely secondary to other factors including his long-time cigarette smoking and hyperlipidemia and perhaps other unknown factors. In the December 2018 JMPR it was determined that the Board erred by relying on this opinion as it did not address secondary service connection on an aggravation basis. In a May 2011 letter, the Veteran's private physician with the initials A.F. stated that the Veteran has CAD resulting in low blood pressure causing claudication in his lower extremities. In an April 2017 letter, the same physician opined that it is more likely than not that the severe frostbite of his bilateral feet affected the blood flow (circulatory issues) that resulted in a heart condition. The April 2017 opinion is of minimal, if any, probative weight because it is not accompanied by any specific explanation or rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). A February 2020 VA physician opined that the Veteran's CAD is less likely than not proximately due to or the result of the Veteran's service-connected frostbite. The VA physician explained that although the Veteran's personal cardiologist opined that it was more likely than not that his frostbite condition resulted in a heart condition, this is the only positive nexus of record. The VA physician noted that the Veteran's risk factors for CAD were numerous which included hyperlipidemia, hypertension, smoking, and diabetes mellitus type 2. The VA physician explained that there is no objective evidence for any persistent or ongoing feet reactions to the frostbite of the bilateral feet which occurred in Alaska in 1953. The VA examiner noted that for decades the Veteran's peripheral pulses and sensation in the feet have been normal. Any residual symptoms of frostbite of the bilateral feet have been subjective without any objective abnormal findings. The VA physician determined that the Veteran's frostbite of the bilateral feet have resolved over time as there is no evidence of discoloration, hyperhidrosis, skin changes, or a decrease in peripheral pulses. Ultimately, the VA physician concluded that no effects on the development of any systemic condition such as CAD can be established. The Board finds this opinion probative as it is clearly stated and supported by a thorough rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In an April 2021 letter, the Veteran's physician stated that it is clear from the medical records that the frostbite and cold-induced peripheral neuropathy in his feet caused him chronic pain with prolonged standing and walking. As a result, the Veteran became sedentary and developed obesity which contributed significantly to his CAD. The physician further explained that medical literature identifies both a sedentary lifestyle and obesity as major risk factors for CAD. While the private physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). Therefore, the April 2021 private opinion is entitled to substantial probative weight. In sum, a private physician attributed the Veteran's CAD to his obesity which was caused by his service-connected frostbite. The Veteran's VA treatment records indicate he has been obese for a long time which supports the appellant's contention. The Board finds the positive nexus opinion provided by the appellant to be equal in probative weight to the negative nexus opinion provided by the February 2020 VA physician. Therefore, the evidence is at least evenly balanced as to whether the Veteran's service-connected frostbite caused the Veteran to become obese; the obesity as a result of the service-connected frostbite was a substantial factor in causing the CAD; and the CAD would not have occurred but for obesity caused by the service-connected frostbite. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for CAD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Cause of death Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying Veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). 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). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was related to the cause of death. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The appellant contends that the Veteran's now service-connected CAD contributed to his cause of death. The Veteran died in January 2015. His death certificate lists the immediate cause of death as metastatic gastric cancer with ischemic heart disease as a significant condition contributing to his death. In an April 2017 letter, the Veteran's private physician, A.F., opined that it is more likely than not that his death was contributed to by severe frostbite of his bilateral feet that affected the blood flow (circulatory issues) that resulted in a heart condition. In an April 2021 letter, a private physician opined that the Veteran's CAD contributed substantially to the Veteran's death. The latter opinion contained a detailed explanation of the reasons for the conclusion based on an accurate characterization of the evidence of record and is therefore probative. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, as the Veteran is now service connected for CAD and his death certificate lists ischemic heart disease as a contributory cause of the Veteran's death, service connection for cause of death is warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.