Citation Nr: 1755076 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 06-00 432A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1151, claimed as due to VA medical treatment in January 2004. 3. Entitlement to accrued benefits for claims for an initial evaluation in excess of 10 percent for acromioclavicular joint degenerative changes, status-post Bankart repair, right shoulder; service connection for residuals, fracture, left second metatarsal; service connection for residuals, left knee arthroscopy with degenerative changes; service connection for degenerative changes, lumbosacral spine; service connection for left hip condition; and service connection for asbestos exposure. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to July 1981 and from September 1982 to September 1985. He passed away in January 2004. The appellant is his widow. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that denied the issues on appeal. The Board observes that the accrued benefit claims stem from a May 2003 rating decision during the Veteran's lifetime that granted service connection for the right shoulder disability, evaluated as 10 percent disabling; denied service connection for left foot, left knee, lumbosacral spine and left hip disabilities; and denied service connection for asbestos exposure. The Board remanded the claims on appeal in December 2012 for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's Certificate of Death shows that he died on January [REDACTED], 2004. The cause of death was pulmonary embolus due to or as a consequence of thrombosis of deep veins of the leg. The appellant contends that negligent VA surgery and post-surgical care of the Veteran's left ankle on January 14, 2004, resulted in the development of the pulmonary embolus. The Board's December 2012 remand requested that the AOJ contact the VA examiner who had provided an unclear September 2009 medical opinion for a clarification as to whether negligence was involved in any aspect of VA's treatment of the Veteran. The AOJ received evidence that the September 2009 examiner no longer worked for VA, and then obtained a medical opinion from a different examiner in May 2015. The AOJ subsequently requested an addendum from the May 2015 examiner, only to learn that he no longer worked for VA. The AOJ then obtained a Disability Benefits Questionnaire (DBQ) Medical Opinion from a third examiner in November 2016, along with an undated addendum from her addressing a positive March 2006 private medical opinion and the September 2009 VA medical opinion. The November 2016 DBQ Medical Opinion and undated addendum are negative and do not support the appellant's claim. A review of the DBQ Medical Opinion reflects that essentially it does no more than repeat the May 2015 medical opinion, including using verbatim language and the same medical citation. However, in requesting an additional medical opinion, the Board sought a medical opinion that was independent of the prior medical opinions of record and undertook a critical review of the evidence with no deference to prior conclusions against the appellant's claim. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. As it did during the December 2012 remand, the Board points out for the appellant's benefit that, if she ultimately receives an award for the § 1151 claim, it would be subject to offset against any Federal Torts Claim Act (FTCA) award stemming from the January 2004 VA surgery. Under VAOPGCPREC 7-94 (March 1, 1994), when an individual is awarded a judgment or enters into a compromise on a FTCA claim subject to 38 U.S.C.A. § 1151, that individual's future compensation based on the same disability must be offset by the entire amount of the judgment or settlement proceeds, including the amount of any attorney fees paid out of such proceeds. Turing to the accrued benefits claims, the evidence of record at the time of the May 2003 rating decision during the Veteran's lifetime included treatment records for the period of October 2, 2001, to July 8, 2002, from the Tucson, Arizona VA Medical Center (VAMC). The October 2, 2001, treatment record includes prior assessments of foot pain, essential hypertension and hypercholesterolem (sic). The prior assessments suggest that there exist additional VA treatment records dated prior to October 2, 2001. The Board acknowledges that in a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death; however, there is an exception for outstanding service treatment records or VA records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000 (a), (d)(4); see Hayes v. Brown, 4 Vet. App. 353 (1993). Thus, in this case any additional VA treatment records dated prior to October 2, 2001, are deemed to have been constructively of record at the time of the May 2003 rating decision. The Board observes that the May 2003 rating decision during the Veteran's lifetime also denied service connection for asbestos exposure. VA correspondence to the Veteran dated June 30, 2003, refers to a written disagreement from the Veteran with respect to the May 2003 rating decision, that VA received on June 25, 2003. The correspondence lists the issues as those pertaining to the right shoulder, left foot, left knee, lumbosacral spine and left hip disabilities. It does not list the issue of service connection for asbestos exposure. Similarly, an August 2003 deferred rating decision refers to an NOD received on June 25, 2003, and lists the issues as those pertaining to the right shoulder, left foot, left knee, lumbosacral spine and left hip disabilities. It does not address the issue of service connection for asbestos exposure. The record does not contain any correspondence from the Veteran, received on June 25, 2003, that appears to be an NOD with the May 2003 rating decision. Thus, the record contains no statement from the Veteran that specifically limits the appealed issues to those pertaining to the right shoulder, left foot, left knee, lumbosacral spine and left hip disabilities, and excludes the issue of service connection for asbestos exposure. As a result, the Board finds that the accrued issues on appeal include the issue of entitlement to service connection for asbestos exposure. The Board has recharacterized the accrued benefits issue as listed on the title page of this decision to reflect this fact. The issue of entitlement to service connection for the cause of the Veteran's death is inextricably intertwined with the other issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all outstanding VA treatment records, including those dated prior to October 2, 2001. 2. Provide copies of all relevant records from the Veteran's eFolders to an appropriate VA examiner. After reviewing the relevant medical evidence in the eFolders; the medical history; and the September 2009, May 2015 and November 2016 VA medical opinions, the undated addendum to the November 2016 VA medical opinion, and the March 2006 private medical opinion, the examiner is asked to address: a) Whether the Veteran's pulmonary embolus due to thrombosis of deep veins of the leg was due to carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on the part of VA in conducting the January 2014 surgery and post-surgical care; and b) Notwithstanding any informed consent documents, the examiner must also state whether any additional disability was a reasonably foreseeable outcome of the procedure based upon the specific facts and circumstances of this Veteran's case. In addressing each of these questions, the examiner is specifically requested to address whether the Veteran was at high risk for deep vein thrombosis due to his morbid obesity and poor mobility, as noted by the March 2006 private medical opinion and the September 2009 VA medical opinion. 3. Then, readjudicate the appellant's claim. If any benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 2015). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2016).