Citation Nr: 21013739 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-55 201A DATE: March 10, 2021 ORDER Service connection for the cause of the Veteran’s death is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Appellant, the Veteran’s service connected trench foot had a causal connection to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1943 to June 1945. He is the recipient of the Combat Infantry Badge and the Purple Heart. He died in April 2018; the Appellant is his surviving spouse. The Appellant and the Veteran’s daughter testified before the undersigned Veterans’ Law Judge at a Board hearing in March 2020. The Board has previously remanded this matter. Cause of Death To establish entitlement to service connection for the cause of a Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). The Veteran has the benefit of the doubt. 38 U.S.C. § 7105; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996).   Veteran’s Trench Foot In this matter, the Veteran was service connected for bilateral trench foot since his discharge from service in 1946. At the time of his death he was in receipt of the maximum rating allowed for his disability. Based on the severity of his condition, the Veteran was also granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of November 2008. The Veteran died in April 2018. His death certificate listed his immediate cause of death as dementia, with secondary factors of hypertension, congestive heart failure, and diabetes mellitus (DM) also listed as contributing causes of the Veteran’s death. The Appellant has stated that the Veteran’s severe trench foot disability had a causal connection to the Veteran’s death. She testified that the Veteran’s trench feet caused him significant pain throughout his life that made mobility challenging and contributed to the causes of the Veteran’s death. See March 2020 hearing. The Veteran’s treating provider submitted two statements regarding the Veteran’s trench feet and the impact the condition had upon the Veteran’s health and causes of death. In a June 2018 statement, the physician reported that he had been treating the Veteran for over a decade. He stated that the Veteran’s trench foot caused him pain and contributed substantially to the Veteran’s death. In April 2020, the physician submitted a second report which noted that he had become aware of a VA cold injury protocol examination. The physician reviewed that examination and stated that the Veteran’s severe cold injury resulted in chronic pain, Raynaud’s phenomenon, and daily suffering which made it more difficult to deal with the Veteran’s other health problems, specifically including his congestive heart failure. The physician stated, with certainty, that the Veteran’s vascular problems were the result of his frostbite and trench foot and these conditions were a major contributing factor in the Veteran’s death. A December 2020 VA examination opinion found that the Veteran’s trench foot was less likely than not a cause of his death. The examiner stated that the private physician report of June 2018 reporting the Veteran had significant pain was contradicted by a March 2018 private medical record which stated the Veteran was in no distress. The VA examiner thereby concluded that at the time of his death it was more likely than not that the Veteran was no longer having severe foot pain, numbness, arthralgias, nail abnormalities, or color changes. After review of the record, the Board finds that the December 2020 VA examiner opinion mis-stated the evidence of record and relied on facts not found in the record. The Veteran’s VA and private treatment records document a long history of his severe foot pain. See March 2008 VA record, January 2010 Cold Injury Protocol Examination, and November 2012, May 2013, December 2013, April 2014, July 2016, January 2018, and March 2018 private medical records. Specifically, the January 2010 VA examination noted the Veteran’s service connected foot disability caused him to be functionally very impaired, with numb and painful feet, an inability to walk up/down stairs, and required use of a cane and/or wheelchair. A January 2018 private medical record specifically stated that the Veteran continued with significant foot pain. As to the March 2018 record noted by the VA examiner, the record specifically reported the Veteran had activity limited by foot pain. The “appearing in no distress” notation made was in reference to the specific mental health problem the March 2018 visit was addressing and did not relate to the Veteran’s feet. The Board, then, does not afford the December 2020 VA examination opinion any probative weight. (Continued on the next page)   The remaining evidence of record must be viewed in the light most favorable to the Appellant. Denial of the claim is only appropriate when the preponderance of the evidence weighs against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) and Alemany v. Brown, 9 Vet. App. 519 (1996). The Board previously found that the opinions of the Veteran’s treating provider did not provide the direct casual link between the Veteran’s trench foot and his listed causes of death sufficient to grant service connection. However, the Board is unable to find that the overall preponderance of the evidence weighs against the claim. Thus, the standard for denial of the Appellant’s claim is not met. The Board is specifically reminded that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, the Board finds that a fair preponderance of the evidence does not weigh against the claim and, as such, service connection for the cause of the Veteran’s death is warranted. Brown v. Brown, 5 Vet. App. 413 (1993). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.