Citation Nr: 18143944 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-00 010A DATE: October 22, 2018 REMANDED Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for heart attack/open heart surgery is remanded. Entitlement to service connection for the Veteran’s cause of death is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as secondary to heart attack/open heart surgery, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to May 1974. He died in July 2013; the Appellant in this case is his surviving spouse. The Appellant testified before the undersigned Veterans Law Judge (VLJ) in November 2017. A copy of the transcript has been associated with the claims file. 1. Entitlement to compensation under 38 U.S.C. 1151 for heart attack/open heart surgery is remanded. During his lifetime, the Veteran contended that VA medical providers were negligent in their diagnosis and evaluation of his cardiac symptoms, which ultimately led to a myocardial infarction. A review of the record indicates that the Veteran was awarded a settlement under the Federal Tort Claims Act (FTCA) in July 2011; however, it is unclear whether all relevant records from the Veteran’s FTCA claim have been associated with the claims file. To further ensure completeness of the record, the Board concludes that the AOJ should contact the Torts and Administrative Law Group section of VA’s Office of General Counsel (OGC) in an attempt to obtain and associate with the record any non-privileged records concerning of the Veteran’s FTCA claim and any resulting settlement of judgment. In addition, the Board concludes that the December 2014 VA medical opinion is inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Specifically, the examiner did not address the lay evidence of record as well as private medical evidence submitted in support of the Veteran’s claim. As such, a remand for a VA medical addendum opinion is necessary. 2. Entitlement to service connection for the Veteran's cause of death is remanded. Lastly, as previously noted, the Veteran died in July 2013. His death certificate indicates that the cause of death was myocardial infarction, coronary artery disease status post four vessel coronary artery bypass graft, hypertension, and dyslipidemia. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Appellant has not been provided a medical opinion regarding the Veteran’s cause of death; therefore the Board finds that one must be obtained on remand. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as secondary to heart attack/open heart surgery, is remanded. Lastly, the Board finds that the issue of entitlement to service connection for PTSD is inextricably intertwined with the other claims remanded herein as additional information obtained from the VA opinions and the other requested documentation could significantly change its adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 1 83 (1991). The matters are REMANDED for the following action: 1. Contact the Appellant and request authorization to obtain any outstanding records pertinent to her claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Obtain all available court records and evidence associated with the Veteran’s tort claim under the Federal Tort Claims Act against VA with respect to the claim brought under 38 U.S.C. § 1151. Specifically, the AOJ must contact the Tort and Administrative Law Group of the VA Office of General Counsel, the applicable United States District Court, and, if necessary, the United States Department of Justice. A PACER search for documents should also be conducted. Associate all evidence obtained with the claims file. If the records are not obtained, and only if after continued efforts to obtain them shows that the records do not exist or further efforts to obtain them would be futile, the AOJ must provide to the Appellant a formal finding of unavailable that accomplishes the following: (a) informs her that VA was unable to obtain the records associated with the Veteran’s tort claim; (b) explains the efforts VA made to obtain such records; (c) provides a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (d) notifies her that she is ultimately responsible for providing the evidence. 3. After completing the requested development, obtain an addendum medical opinion with respect to the Appellant’s 38 U.S.C. § 1151 claim. The entire claims file must be made available to the clinician, and the addendum opinion should include discussion of the Veteran’s documented medical history and assertions. After a thorough review of the claims file, the examiner should answer the following question: (a.) Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s myocardial infarction was the result of: (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA treatment providers; or (b) an event not reasonably foreseeable in the course of VA treatment. In making a determination, the examiner should consider: i.) February 2009 Veteran’s Statement in Support of Claim; ii.) October 2009 Dr. R.H.G. correspondence; iii.) December 2009 Notice of Disagreement; iv.) January 2011 Decision Review Officer Hearing Transcript; v.) June 2011 Federal Tort Claims Act Settlement and any associated documents obtained; and, vi.) November 2017 Board Videoconference Hearing Transcript. A complete rationale must be provided for any opinion requested. 4. Obtain a medical opinion from an appropriate clinician to determine the cause of the Veteran’s death. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner should answer the following questions: (a.) Is it at least as likely as not that any of the conditions that contributed to cause the Veteran’s death were caused by, or etiologically related to, his active duty service? (b.) If the Veteran’s heart condition is found to be etiologically related to service, is it at least as likely as not (a fifty percent probability or greater), that the Veteran’s PTSD was caused or aggravated by his heart condition? A complete rationale must be provided for all opinions requested. (Continued on the next page)   If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel