Citation Nr: 1338373	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  09-31 614	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 
U.S.C.A. § 1151. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Marne Marotta, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1961 to September 1962.  The Veteran died in October 2007; the appellant is his surviving spouse.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. 

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The Appellant has claimed entitlement to Dependency and Indemnity Compensation (DIC) benefits for the cause of the Veteran's death pursuant to 38 U.S.C.A. § 1151.  The Appellant contends that the Veteran's death was caused by VA's negligence, including excessive use of medications, and an erroneous intubation that lead to fatal aspiration pneumonia.   She indicates that the Veteran vomited while intubated, and the person who was attending him did not put the oxygen tube back in and did not suction out the vomit that remained in his throat.  

In a September 2009 RO hearing, the Decision Review Officer indicated that a VA opinion would be obtained on this matter; however, to date, no medical professional opinion has been obtained.  The Board concludes that in order to fulfill the duty to assist a remand is necessary to obtain a medical opinion to determine whether the appellant is entitled to DIC pursuant to § 1151.  


Accordingly, the case is REMANDED for the following action:

1.  Refer the claims file, including this remand, to a VA physician with appropriate expertise to review and provide a medical opinion pertaining to the Veteran's cause of death.  

The examiner is asked to review of the claims file and to render an opinion with respect to whether it is at least as likely as not (50 percent probability or more) that the care received in October 2007 (to include the October 13, 2007 intubation) constitutes carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA.  If so, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the care or intubation contributed to or hastened the Veteran's death.  In doing so, the examiner should discuss whether there is a relationship between the intubation and septic shock secondary to community acquired pneumonia, acute respiratory distress syndrome, or respiratory failure on mechanical ventilation.  

The examiner is asked to consider the appellant's February 2008 statement that documents her daily observations during the Veteran's October 2007 hospitalization and the October 10, 2007 consent form that the Veteran signed to participate in a Drotrecogina Alfa (activada) study for patients with severe sepsis.

Any opinion expressed must be accompanied by a complete rationale.


2.  In the interest of avoiding further remand, the AMC/RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  

3.  Then, readjudicate the claim on appeal.  If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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).



_________________________________________________
MICHAEL MARTIN
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) (2013).