Citation Nr: 18139911 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-27 979 DATE: October 1, 2018 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1151 for cause of the Veteran's death due to medical treatment received at the VA Medical Center (VAMC) in Roseburg, Oregon, in February 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1961 to February 1964. The record further reflects that the Veteran died in October 2014, and that the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center (PMC) in St. Paul, Minnesota. In July 2018, the appellant presented oral testimony in support of the appeal at a videoconference hearing conducted by the undersigned. A transcript of that hearing is of record. 1. Entitlement to DIC under the provisions of 38 U.S.C. § 1151 for cause of death due to medical treatment received at the VAMC in Roseburg, Oregon, in February 2010, is remanded. In providing the April 2015 VA opinion, the examiner noted that the VA medical professional who performed the Veteran’s colonoscopy made a “mistake” in recommending that the Veteran return for follow-up testing in 5 years, as the medical guidelines provide for annual (yearly) testing in such circumstances. However, the examiner did not address whether this “mistake” constitutes carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of the VA which may serve as a basis for benefits under the provisions of 38 U.S.C. § 1151. Such a theory of entitlement was asserted by the appellant at the July 2018 hearing, stating that a properly recommended annual colonoscopy, which would have been performed in February 2011, may have led to detection of the Veteran’s colon cancer before it metastasized. As the medical questions posed in this case are beyond the Board’s purview, a remand to obtain further medical opinions is necessary. So that the VA examiner is fully apprised of the Veteran’s complete medical picture, the AOJ must contact the appellant and request that she identify any outstanding treatment records which may be pertinent to the issue before the Board. The matter is REMANDED for the following actions: 1. The AOJ must request that the appellant identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who treated the Veteran during his lifetime for his gastrointestinal disorders and colon cancer. After securing appropriate release(s) from the appellant, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. The appellant must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. Thereafter, the AOJ must return the file, including any additional evidence obtained consequent to this remand, to the VA examiner who provided the April 2015 opinion. The examiner must be advised that the question of negligence is at issue. Thereafter, the examiner must address the following: a. Was the VA medical professional’s February 2010 recommendation for a follow-up colonoscopy in 5 years (rather than 1 year as per the medical guidelines cited in the April 2015 opinion) in any way careless, negligent, lacking in proper skill, or reflective of error in judgment or similar instance of fault? b. Was the Veteran’s development of colon cancer the result of an event not considered an ordinary risk from the perspective of a reasonable health care provider? c. Was the recommendation for a follow-up colonoscopy in 5 years (rather than 1 year) in any manner related to the development of the fatal colon cancer, including whether the recommendation for testing was inadequate in these circumstances? d. Was the course of treatment the Veteran received from VA between February 2010 and September 2011 in any manner related to the cause of the Veteran’s demise from colon cancer? * In addressing part (d), the examiner is requested to discuss whether a colonoscopy performed in February 2011 (as per the medical guidelines) would have likely detected the Veteran’s colon cancer, and if so, whether the earlier detection would have occurred prior to the cancer metastasizing and/or whether the earlier detection could/would have prevented the Veteran’s demise. A full rationale must be provided for all stated medical opinions. If the examiner is not able to provide an opinion, he or she should explain why. 3. After undertaking any additional development deemed appropriate, and giving the appellant a full opportunity to supplement the record, adjudicate the claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel