Citation Nr: 1449390 Decision Date: 11/06/14 Archive Date: 11/12/14 DOCKET NO. 12-21 075A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC), pursuant to the provisions of 38 U.S.C. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active military service from January 1943 to December 1945. The Veteran died in June 2010; the appellant is his widow. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2012 rating decision in which the RO denied the appellant's claim for DIC, pursuant to the provisions of 38 U.S.C. § 1151. The appellant filed a Notice of Disagreement (NOD) in March 2012, and the RO issued a Statement of the Case (SOC) in July 2012. The appellant filed a substantive Appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2012. While the appellant indicated, in her August 2012 substantive appeal that she did not wish to testify during a Board hearing, a March 2014 report of contact indicated that the appellant did wish to testify during a Board hearing. Clarification in this regard was sought by the Board in November 2014 and, in a November 2014 memorandum, the Veteran's representative wrote that the March 2014 request for a Board hearing was a typographical error and that the Board should proceed in resolving the case. As such, there are no pending hearing requests in this case. This appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2014). The appeal was processed using the paperless, electronic Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this Veterans claim should take into consideration the existence of these electronic records. In addition to the VBMS file, there is a paperless, electronic Virtual VA file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the VBMS file or are irrelevant to the issue on appeal. For the reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the appellant when further action, on her part, is required. As a final preliminary matter, the Board notes that, prior to the Veteran's death, service connection had been established for status post right hip replacement associated with residuals of pelvic fracture, low back condition to include residuals of sacral fracture, residuals of pelvic fracture, arthritis of the left hip associated with residuals of pelvic fracture, and residuals of skull fracture at the time of his death. In addition to the theories specific to 38 U.S.C. § 1151, the appellant and her children have asserted that the Veteran's death was generally caused by his service-connected disorders, which they contend, put additional strain or stress on his body and resulted in his death. While the RO has only adjudicated the issue of entitlement to DIC pursuant to the provisions of 38 U.S.C.§ 1151, the Board finds that the appellant has also raised the issue of entitlement to service connection for the cause of the Veteran's death. As this issue has not yet been addressed by the RO, this matter is not properly before the Board, and is referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that further AOJ action in connection with this claim is warranted. VA treatment records show that the Veteran was admitted to VA hospice care beginning in January 2010 for terminal non small cell cancer of the lungs. The Veteran also had numerous other medical issues, including bladder cancer and recurrent urinary tract infections (UTIs). He was transferred to long term VA care in March 2010. Records from these hospitalizations show that he was given varying dosages of Risperidone, on and off, from April 2010 through June 2010. Significantly, a May 1, 2010 record noted that the Veteran's Risperidone was increased and that "Wife agreed." Also, a May 7, 2010 record indicated that the psychiatrist preferred the medication Haldol but, due to family preference, Risperidone was being used "although in the process of being weaned from standing to prn." On the day of the Veteran's death, it was noted that Risperadone was being used without affect. It was also noted that the Veteran had an elevated urine culture and fluid in the right lung. Significantly, it was noted that the Veteran had tripped over the foot pedals on his wheelchair and hit his head. The Veteran underwent computed tomography (CT) scan of the head which was negative for a bleed into the brain, only bleeding around the left eye which was visible, as well as swelling and ice packets. It was noted that the family was aware of the Veteran's poor prognosis. After the Veteran's death, the Veteran's wife denied an autopsy. The Veteran's Certificate of Death shows that his immediate cause of death was cardiopulmonary arrest, non small cell lung cancer. In this case, the appellant, along with her children, have proffered several theories as to the cause of the Veteran's death. First, they have contended that the Veteran fell from his wheelchair just 12 hours before his death because he was placed in a different wheelchair that did not have footrests or an alarm pad and that this fall led to his untimely death. They have also contended that the Veteran was given several medications that are harmful to the elderly, to include Risperidone, which resulted in his death. Significantly, they have contended that the Veteran's family specifically instructed the Veteran's treating physicians not to give the Veteran Risperidone. Third, they have contended that the Veteran had a UTI immediately prior to his death and that he was not promptly given antibiotics for this infection which resulted in symptoms of dementia and his untimely death. Fourth, they have contended that the Veteran's physicians did not adequately treat him after falling the day of his death as they should have recognized that the Veteran's low platelet count earlier in the week put him at risk for internal bleeding. Finally, they have contended that VA should have informed the family of the necessity of performing an autopsy given that the Veteran had fallen just hours before his death. A VA medical opinion was obtained in this case in February 2012. Upon review of the claims file, the examiner opined that: "The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." As rationale for this opinion, the examiner wrote: CPRS and C file reviewed - 85 yo male admitted to hospice 1/13/10 for terminal non small cell ca of lung. Vet had numerous other medical issues including bladder ca hx and recurrent UTI's. He was transferred to Long Term care 3/31/10. There were episodes of agitation and confusion during hospital stay requiring meds to quell. There were several falls during the admission. The pt fell on 6/25/12 getting out of a wheelchair hitting his head. CT head showed no acute intracranial abnormality. The pt was agitated that day and urine c/s was pos. CXR 3/26/10 had documented marked progression of R hilar mass. The pt died 6/25/10 -10:45 pm. After review of this record it is my opinion that there was no fault or negligence on the part of the VA either in the use of Risperidone or related to the fall on 6/25/10. The pt died the same day of the fall on 6/25/10 but in view of the other medical issues present and no autopsy I cannot state without resort to mere speculation whether the fall of 6/25/10 played any significant role in his death. I do not think there was any improper administration of Risperidone. In an October 2014 Informal Hearing Presentation, the Veteran's representative included medical treatise evidence showing the side effects of Risperidone and wrote that Risperidone is an antipsychotic medication, and is included on the BEERS list of medications contraindicated in the elderly due to the evidence of increased complications. The representative also wrote that the RO had failed to provide documentation demonstrating that the use of the medication on the date of death was with informed consent of either the Veteran or his family. The Board finds that further medical opinion in this case is necessary. First, while the February 2012 VA examiner opined that the Veteran's death was not "incurred in or caused by the claimed in-service injury, event, or illness, " the Board notes that this is not the appropriate question in an 38 U.S.C. § 1151 case. Rather, the appropriate question in such cases is whether the proximate cause of the Veteran's death was the result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable. The Board also finds that the February 2012 opinion regarding the effects of Risperidone is inadequate as the examiner failed to provide any rationale as to why there was no improper administration of Risperidone, to include the family's contentions that this medication should not be used on the elderly and that the family instructed the Veteran's physicians not to give him this medication. Furthermore, the February 2012 VA examiner failed to address the other theories made under 38 U.S.C. § 1151, to include the failure to provide timely antibiotics for the Veteran's UTI, the failure to properly evaluate the Veteran after his head injury given his low platelet count, and the failure to suggest that an autopsy was necessary. Accordingly, on remand, an addendum opinion should be obtained from the physician who provided the February 2012 opinion, or if necessary, another appropriate physician. Prior to arranging for further medical opinion, to ensure that all due process requirements are met, and that the record is complete, the AOJ should give the appellant another opportunity to provide information and/or evidence pertinent to the claim on appeal, notifying her that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2014). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal in light of all pertinent evidence and legal authority. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the appellant and her representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Arrange to obtain an addendum opinion from the VA physician who provided an opinion in this case in February 2012. If that physician is unavailable, arrange for claims file review by an appropriate physician to obtain an opinion responsive to the question/ comments noted below. The entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the opinion must include discussion of the Veteran's documented medical history and the appellant's assertions. Following a review of all the relevant evidence and considering accepted medical principles, the reviewing physician is requested render an opinion, consistent with sound medical judgment, ad to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's death was due to (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable. In rendering the requested opinion, the physician should fully discuss (and provide supporting rationale) whether there was proper administration of Risperidone, to include the family's contentions that this medication should not be used on the elderly and that the family instructed the Veteran's physicians not to give him this medication. Furthermore, the physician should consider and fully discuss the other theories advanced in support of the section 1151 claim, to include alleged failures to provide timely antibiotics for the Veteran's UTI, to properly evaluate the Veteran after his head injury given his low platelet count, and to suggest that an autopsy be performed. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all that associated with the claims file since the last adjudication), and legal authority 7. If the benefit sought on appeal remains denied, furnish to the appellant and her representative an appropriate supplemental statement of the case includes clear reasons and bases for all determinations and reflects review of all pertinent evidence of record, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E., MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2013).