Citation Nr: 1803805 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-32 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1151. 2. Entitlement to an increased amount of death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from July 1943 to February 1947. He passed away in June 2006. The appellant is the Veteran's surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2017, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The undersigned is advancing this appeal on the docket based upon advanced age of the appellant. 38 C.F.R. § 20.900(c) (2017) ("advanced age" is defined as 75 or more years of age). Accordingly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that these matters must be remanded for further development before a decision may be made on the merits. DIC under 38 U.S.C. § 1151 The appellant seeks entitlement to DIC benefits under 38 U.S.C. § 1151 for the Veteran's death. She contends that the Veteran's death from large B cell leukemia was hastened by improper treatment he received at a VA medical facility. Specifically, she has asserted that the Veteran was subjected to verbal and physical abuse during treatment, was neglected by VA health care providers, received improper bandaging of cellulitis on his leg, and was improperly and excessively medicated such that he entered a state of unconsciousness for a day and half shortly before passing away. See, e.g., VA Form 21-4138, Statement in Support of Claim, received in October 2007; December 2017 Board hearing transcript. Under the relevant regulations, 38 U.S.C. § 1151 benefits may be granted for the continuance or natural progress of a preexisting disease when VA's failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress and a physician exercising the degree of skill and care ordinarily required reasonably should have diagnosed the condition and rendered treatment. 38 C.F.R. § 3.361. In this case, VA obtained an opinion in March 2008 to determine whether the Veteran's death from the preexisting large B cell leukemia was the result of VA's failure to properly treat the condition. The clinician who provided the opinion reviewed the record and summarized the Veteran's medical treatment prior to his death. The clinician stated, "There is no evidence that [the Veteran's] death was caused by or a result of negligence or malpractice" at the VA facility and, "Based upon the review of the c-file there was no evidence that the Veteran's cause of death was hastened by treatment received at the VAMC. The treatment rendered at the VAMC did not contribute to his death." The clinician did not offer any rationale for those conclusions and did not address the appellant's specific contentions as to why she believes the treatment the Veteran received at the VA medical facility was improper. The opinion is therefore inadequate for decision-making purposes, and the issue must be remanded so that an adequate opinion may be obtained. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (an adequate medical examination must provide a rationale and explanation for its conclusions); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Death Pension Benefits The appellant seeks entitlement to an increased amount of death pension benefits. To determine the amount of an eligible surviving spouse's monthly death pension benefit, VA must subtract the appellant's annual countable income for pension purposes from the maximum annual pension rate, which is published in Appendix B of VA Adjudication Procedures Manual M21-1. 38 C.F.R. § 3.21. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income) shall be included during the 12-month annualization period in which received, except for the exclusions set forth in 38 C.F.R. § 3.272, such as unreimbursed medical expenses. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. The most recent records of the appellant's income and expenses provide information only through September 2015. The appellant has indicated that she was severely injured in 2015 and has since had reduced income and increased medical expenses. See December 2017 Board hearing transcript. The Board finds that the appellant must be asked to provide updated information regarding her income and medical expenses so that her death pension benefits may accurately be calculated. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the record and a copy of this remand to a VA clinician qualified to provide the information requested below for preparation of an addendum opinion. The clinician is advised that the appellant in this case has contended that the Veteran's death from large B cell leukemia was hastened by verbal and physical abuse and neglect from VA health care providers, improper bandaging of cellulitis of the leg, and improper and excessive medication that put him in a state of unconsciousness for a day and half shortly before passing away. The clinician is asked to review the record and then respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's death was hastened or caused by VA's failure to provide treatment for his B cell leukemia to a degree that would have been provided by a physician exercising the degree of skill and care ordinarily required of the medical? The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. Any opinion given must reflect consideration of the appellant's contentions, specifically to include the contention that the medications administered prior to the Veteran becoming unconscious were improperly administered and/or were administered in improper dosages. See VA Form 21-4138 received in October 2007; December 2017 Board hearing transcript. 2. Send the appellant a VA notification letter asking for updated information as to her income and expenses for the period from October 2015 through the present. The letter should be enclosed with VA Form(s) 21-0518-1, Improved Pension Eligibility Verification Report (Surviving Spouse with No Children); VA Form(s) 21P-8416, Medical Expense Report; and any other forms required for a full and accurate reporting of the appellant's income and expenses since from October 2015 through the present. 3. After completion of the above, review the expanded record, including the evidence entered since the statements of the case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the appellant and her representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).