Citation Nr: 18146564 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-30 542 DATE: November 1, 2018 REMANDED Entitlement to service connection for the cause of the Veteran’s death, to include compensation under 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1970. The Veteran died in April 2014; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to dependency and indemnity compensation pursuant to 38 U.S.C. § 1151 for the cause of the Veteran’s death. In September 2015, the appellant testified at a hearing before a Decision Review Officer (DRO). In November 2016, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of the hearings are associated with the claims file. During the November 2016 Board hearing, the appellant raised other theories of entitlement regarding the cause of the Veteran’s death. Hence, the appellant’s claim has been expanded and recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Entitlement to service connection for the cause of the Veteran’s death, to include compensation under 38 U.S.C. § 1151, is remanded. The appellant has three contentions as to the cause of the Veteran’s death. First, the appellant asserts that a VA medical center (MC) was negligence in caring for the Veteran and that the lack of care contributed to the Veteran’s death. Second, the appellant contends the Veteran’s service-connected anxiety reaction contributed to his death. Third, the appellant claims that the Veteran had a “nervous stomach” or a gastrointestinal disorder since service and that it was related to service, which contributed to his death. As indicated above, the Veteran died in April 2014. His amended death certificate lists the immediate cause of death as hepatic steatosis with contributing cause of obstructive inflammatory mass and sigmoid colon. See amended death certificate dated June 2014. At the time of the Veteran’s death, he was service connected for an anxiety reaction (psychiatric disorder). As to the appellant’s first contention, she explains that on April 5, 2014, the Veteran was admitted to the VAMC emergency room (ER) for stomach pain and constipation. See appellant’s claim dated July 2014 and Board hearing transcript dated November 2016. After the Veteran underwent an x-ray and was prescribed medication he was discharged on April 5, 2014, and died two days later. The appellant contends that the VAMC care caused the Veteran’s death in two ways. First, the appellant alleges that the VAMC ER should have not discharged the Veteran on April 4, 2014, but rather he should have been admitted, at least, overnight for further treatment and care. Second, the VAMC misdiagnosed the Veteran. VA treatment records dated on April 5, 2014, reflect that the Veteran was admitted to the ER for nausea, stomach pain, and constipation. He underwent a CT of the abdomen; the CT of the abdomen showed mild gaseous distention of the large bowels with evidence of obstruction. He was prescribed medication. A treatment provider noted that the Veteran was admitted to the ER for gastrointestinal “symptoms follow up.” He was discharged on April 5, 2014. In January 2015, a VA medical opinion was obtained to determine the cause of the Veteran’s death. The VA physician was requested to opine whether the Veteran’s VAMC treatment was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care, medical or surgical treatment, or examination. Also, the physician was requested to opine whether the VAMC failed to exercise the degree of care that would be expected of a reasonable health care provider. The VA physician opined that the Veteran’s “condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” Thereafter, the VA physician stated that the requested opinion is deferred until she is able to view of the autopsy report. Then, the VA physician provided a rationale that appeared to suggest that the VAMC that treated the Veteran on April 5, 2014, did not cause his death, but rather his “colon lesion significantly contributed to the Veteran’s death.” In short, the January 2015 VA opinion is flawed as it is unclear and does not address the applicable standard for cause the Veteran’s death pursuant to 38 U.S.C. § 1151. As to the appellant’s remaining assertions regarding the cause of the Veteran’s death, a VA opinion has not been obtained to determine whether the Veteran’s service-connected physiatric disorder contributed to his death or whether his “nervous stomach” or a gastrointestinal disorder was related to service and ultimately contributed to his death. To this extent, the appellant is competent to report that she witnessed the Veteran symptoms prior to his death, such as a “nervous stomach” or a gastrointestinal disorder. The June 2017 report from Dr. Cunningham, while it addresses some of the above issues and expresses concern regarding the treatment that the Veteran received, does not indicate with any degree of certainty that the Veteran’s death was caused by VA care and the proximate cause was VA fault or an event not reasonably foreseeable. The Veteran’s attorney indicated that Dr. Cunningham declined to issue another report after reviewing additional records. Dr. Cunningham’s letter does, however, suggest the possibility of VA fault. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran’s death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); Delarosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical opinion or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. The above reflects that there is a reasonable possibility that such assistance would aid in substantiating the claim. For the foregoing reasons, a remand is warranted to obtain a VA medical opinion to address the cause of the Veteran’s death on all theories of entitlement raised by the appellant and to consider all of the evidence including Dr. Cunningham’s September 2017 report. The Board apologizes for the additional delay as well as the lengthy delay between the November 2016 Board hearing and issuance of this remand, which appears to be due to multiple factors including the docket number of this case. See 38 U.S.C. § 7107(a) (providing that appeals will be considered and decided based on docket order, unless it is advanced on the docket pursuant to a motion). The matter is REMANDED for the following action: 1. Arrange to obtain an opinion from an appropriate physician regarding the cause of the Veteran’s death. A copy of this remand must be made available to the physician for review in connection with the requested opinion. After a full review of the claims file, the physician should answer the following questions: (a.) Is it at least as likely as not (50 percent probability or more) that on April 4, 2014, the VAMC caused or worsened (in whole or in part) the Veteran’s fatal hepatic steatosis with obstructive inflammatory mass and sigmoid colon. (i.) If so, is it at least as likely as not (50 percent probability or more) that the proximate cause of the fatal hepatic steatosis with obstructive inflammatory mass and sigmoid colon was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable? (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s service-connected psychiatric disorder substantially or materially contributed to his death from hepatic steatosis with obstructive inflammatory mass and sigmoid colon. (c.) Is it as least as likely as not (50 percent probability or more) that the Veteran had “nervous stomach” or a gastrointestinal disorder that had its onset in service, or was otherwise the result of a disease or injury in service? In addressing the above, the physician should consider the appellant’s reports that the Veteran had “nervous stomach” or a gastrointestinal disorder since service. (i.) If found that any gastrointestinal disorder had its onset in-service or is related to service, then answer whether it is at least as likely as not (50 percent probability or more) that it substantially or materially contributed to the Veteran’s death from hepatic steatosis with obstructive inflammatory mass and sigmoid colon.   The physician must provide reasons for each opinion given. All of the relevant evidence should be considered, including Dr. Cunningham’s June 2017 report. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel