Citation Nr: 1323932 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 04-08 807 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from April 1952 to April 1955. He died in May 2002. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by which the RO denied entitlement to the benefit sought herein. The appellant testified at a hearing before a Decision Review Officer at the RO in May 2004. A transcript of the hearing has been associated with the record. In May 2006, the Board remanded the issue on appeal to the RO for further development of the evidence. In an April 2007 decision, the Board denied the appellant's claim for DIC benefits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2008 Order, the Court vacated the April 2007 Board decision and remanded the matter to the Board for action consistent with the parties' September 2008 Joint Motion for Remand. The Board remanded the claim to the RO in April 2010 and in April 2011. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Quite unfortunately, this matter yet again must be remanded to the RO/AMC due to noncompliance with remand directives articulated by the Board in April 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board last remanded this matter to the RO/AMC in April 2011. The essential facts and background information are laid out in detail in the April 2011 Board remand, and the Board, at this time, will reiterate only the details relevant to the Stegall violations. The April 2011 Board remand contained several directives, the second of which was complied with. It is not, therefore, a matter of concern for the Board. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Initially, the Board asked the following: The RO should take all indicated action in order to obtain from VA all documentation referable to the type of consent received by VA in connection with his April and May 2002 hospital admissions at both the Saginaw VAMC and the Ann Arbor VAMC and associate those records with the claims file. If any consent forms cannot be obtained, the reasons for the unavailability should be documented in the claims file. A review of the claims file reveals that the RO/AMC requested documents from the Saginaw and Ann Arbor VAMCs. No consent forms, however, are apparent from the record, and the RO did not document in the claims file the reason(s) for the unavailability of consent forms. Thus, again, the RO/AMC should obtain consent documents from these VAMCs. In the event that these VAMCs determine that the consent documents are unavailable they should document their lack of availability. Next, the Board observes that in its April 2011 Remand, it asked the following: The claims file should be returned to the examiner who provided the September 2010 opinion. The examiner is asked to provide a supporting rationale for his conclusions reached [in a September 2009 opinion]. If the examiner is unable or not available, then the matter must be referred to another examiner for opinion as specified in the Board's April 2010 Remand directive. The September 2010 Board Remand indicated the following: The RO must obtain a medical opinion from a VA physician regarding the relationship between VA care received between April 2002 and the Veteran's death in May 2002. The Board poses the following specific question to the reviewing physician: Was the Veteran's death caused by hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility between April 2002 and the Veteran's death in May 2002 and was the proximate cause of the death due to (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing such care, treatment, or examination; or (2) an event not reasonably foreseeable? The reviewing physician is advised that the "proximate cause" is the action or event that directly caused the death, as distinguished from a remote contributing cause. The reviewing physician is also advised that "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" may be shown by evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner is specifically requested to address whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in its April 2002 inpatient treatment of the Veteran, and if so, whether such care or lack of care was a proximate cause of the Veteran's death. In March 2012, the VA physician who authored the September 2010 opinion again provided a conclusory opinion unsupported by a rationale. The examiner indicated, moreover, that the "standard of care" was met. He did not articulate the standard of care or explain how it was met. A medical opinion that is unsupported by a coherent rationale is of no probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Due to the failure of the September 2010 and March 2012 VA physician to provide the requisite opinion, the Board will ask that a different physician review the claims file and provide the requested opinion. The instructions for the opinion are contained in the second paragraph below. Finally, the Board notes that a supplemental statement of the case was to be prepared and that the supplemental statement of the case was to contain a discussion of whether any and all medical procedures were performed with the Veteran's informed consent. The August 2012 supplemental statement of the case contains no discussion of informed consent. A new supplemental statement of the case must be prepared in accordance with the appropriate remand directive below. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Take all indicated action in order to obtain from VA all documentation referable to the type of consent received by VA in connection with his April and May 2002 hospital admissions at both the Saginaw VAMC and the Ann Arbor VAMC and associate those records with the claims file. If any consent forms cannot be obtained, the reasons for the unavailability and the RO's efforts to obtain them should be documented in the claims file. 2. Obtain a medical opinion from a VA physician other than the VA examiner who authored the September 2010 and March 2012 opinions herein regarding the relationship between VA care received between April 2002 and the Veteran's death in May 2002. The Board poses the following specific question to the reviewing physician: Was the Veteran's death caused by hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility between April 2002 and the Veteran's death in May 2002 and was the proximate cause of the death due to (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing such care, treatment, or examination; or (2) an event not reasonably foreseeable? The reviewing physician is advised that the "proximate cause" is the action or event that directly caused the death, as distinguished from a remote contributing cause. The reviewing physician is also advised that "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" may be shown by evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner is specifically requested to address whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in its April 2002 inpatient treatment of the Veteran, and if so, whether such care or lack of care was a proximate cause of the Veteran's death. The appropriate standard of care must be articulated, and how that standard was met or not met must be explained. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Following completion of all indicated development, the RO should readjudicate the issue now on appeal in light of all the evidence of record, to include whether any and all applicable medical procedures, pursuant to 38 C.F.R. §§ 3.361(d)(ii) and 17.32, were performed with the Veteran's informed consent. If the benefit sought on appeal remains denied, then a supplemental statement of the case should be furnished to the appellant and her attorney. They should be afforded a reasonable opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MATTHEW D. TENNER Acting 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).