Citation Nr: 1502613 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 12-19 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Enitlement to service connection for the cause of the Veteran's death, to include pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to January 1972. He served in Vietnam from May 1970 to January 1972. The Veteran died in November 2010; the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Milwaukee, Wisconsin Pension Management Center. Jurisdiction of the claim currently resides with the Regional Office (RO) in Detroit, Michigan. In May 2014 the appellant testified before the undersigned at a Travel Board hearing. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. The issues of entitlement to service connection for posttraumatic stress disorder (PTSD) for accrued benefits purposes, entitlement to service connection for a low back disability for accrued benefits purposes, entitlement to service connection for sleep apnea for accrued benefits purposes, entitlement to service connection for a bilateral hip disability for accrued benefits purposes, and entitlement to service connection for a bilateral leg disability for accrued benefits purposes have been raised by the record, but have not been adjudicated by the RO. Specifically, in the May 2011 rating decision, while the RO denied entitlement to accrued benefits "for service-connected bilateral hearing loss and tinnitus," the decision also addressed the fact that the appellant had pending claims of entitlement to service connection for the above-listed disabilities for accrued benefits purposes. The rating decision indicates that these claims would be addressed in a separate decision. However, the record reflects that these claims were never specifically addressed in any additional decision. While, in a May 2014 notification letter, the appellant was informed that her claim of entitlement to "accrued benefits" was denied, it was denied on the basis that she did not file a timely claim for accrued benefits. Clearly, the appellant still has the above pending (timely) service connection claims for accrued benefits purposes. As such, the following claims are referred to the RO for appropriate development action and adjudication in the first instance: entitlement to service connection for PTSD for accrued benefits purposes, entitlement to service connection for a low back disability for accrued benefits purposes, entitlement to service connection for sleep apnea for accrued benefits purposes, entitlement to service connection for a bilateral hip disability for accrued benefits purposes, and entitlement to service connection for a bilateral leg disability for accrued benefits purposes. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As previously noted, the Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides. The Veteran's immediate cause of death was listed in his certificate of death as adenocarcinoma of the rectum, due or as a consequence of hepatic metastatic disease, due to or as a consequence of aspiration pneummonia. Rectal cancer is not one of the diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed as caused by exposure to herbicide agents, nor did it manifest in service or within one year of the Veteran's discharge from service. However, this lack of presumption does not preclude the establishment of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. In Combee the Court found that because medically competent evidence is not required in every case to indicate that a claimant's disability may be associated with service for the purposes of determining whether VA must provide a medical examination, the Board was in error when it did not obtain a medical opinion as to whether the Veteran's herbicide exposure in Vietnam caused his death. In this case the appellant submitted a private medical opinion which appears to indicate that the Veteran's exposure to Agent Orange in Vietnam may be associated with his rectal cancer. As such a remand is required in order to obtain a medical opinion in this regard. At the hearing before the undersigned the appellant also argued that VA was negligent in not providing the Veteran with a colonoscopy for a significant time, which resulted in his cancer not being detected until it was severely advanced. The appellant specifically stated that the Veteran was experiencing rectal bleeding and was treated for hemorrhoids for nine months through VA before he switched to a private practitioner who provided a colonoscopy and found the severely advanced cancer. With regard to the claim for dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1151, the Board observes that 38 U.S.C.A. § 1151 provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2014). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2014). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2014) (emphasis added). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2014). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2014). Consequently, pursuant to 38 U.S.C.A. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C.A. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2010). On remand, the appellant must be provided notice of any information, including medical or lay evidence, that is necessary to substantiate her claimed entitlement to DIC under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Consider also that, in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination for a DIC claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation, which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. But see also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination or opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). Here, the Board cannot make the necessary determinations intrinsic to the § 1151 claim based on the existing medical and other evidence in the file, requiring that the Board obtain medical comment on this § 1151 ancillary issue. The appellant testified at the Board hearing that the Veteran was in receipt of disability benefits from the Social Security Administration (SSA). Unfortunately, the records associated with the SSA decision are not contained in the claims file. Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in obtaining these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). As such, they should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Appellant notice of the type of information and evidence needed to substantiate her claim of entitlement to DIC under 38 U.S.C.A. § 1151, and advise her of her and VA's respective responsibilities in obtaining this supporting evidence. Also give her time to identify and/or submit additional evidence and/or argument in response to this additional notice. 2. Undertake all appropriate development effort to obtain the Veteran's SSA disability benefits records, to include the decision and the medical records on which the decision was based. Associate the records with the claims file. 3. Arrange for an appropriate VA examiner to review the Veteran's entire claims folder, including any newly submitted evidence and argument, in order to provide a medical nexus opinion regarding the etiology of the Veteran's rectal cancer and the question of whether VA failed to timely diagnose and properly treat the Veteran's cancer. A copy of this entire remand must also be provided for the examiner to review. The examiner is advised that the Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. The Veteran died in November 2010. His certificate of death lists the immediate cause of death as adenocarcinoma of the rectum, due or as a consequence of hepatic metastatic disease, due to or as a consequence of aspiration pneummonia. The Veteran was service-connected for bilateral hearing loss and tinnitus at the time of his death. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's adenocarcinoma of the rectum, due or as a consequence of hepatic metastatic disease, due to or as a consequence of aspiration pneummonia was related to the Veteran's military service, to include exposure to herbicides. The examiner must address the evidence of record, including the December 2012 letter from Dr. Sarkar which appears to support a possible association of exposure to herbicides and rectal cancer. The examiner must also provide an opinion as to whether VA failed to diagnose the Veteran's rectal cancer in a timely manner, i.e., should VA medical personnel exercising the degree of skill and care ordinarily required of the medical profession reasonably been able to diagnose the condition and render treatment prior to October 2009 in light of the Veteran's presenting symptoms and complaints? If the answer is yes, would the Veteran's death have been avoided if the proper diagnosis and treatment had been rendered in a timely fashion? The examiner must provide a complete rationale for the opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, then he or she should provide a rationale for why an answer could not be provided. 4. Once the above actions have been completed, re-adjudicate the issue on appeal. If the benefit sought remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board. 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 2014). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).