Citation Nr: 18148559
Decision Date: 11/07/18	Archive Date: 11/07/18

DOCKET NO. 11-00 430
DATE:	November 7, 2018
REMANDED
Entitlement to dependency and indemnity compensation benefits (DIC) under the provisions of 38 U.S.C. § 1151 is remanded.
REASONS FOR REMAND
Entitlement to DIC under the provisions of 38 U.S.C. § 1151 (2012) is remanded.
The Veteran served in the Air Force from August 1973 to July 1974.  He passed away in May 2008; the appellant is his daughter.  At the time of his death, he was receiving medical care and treatment from the Department of Veterans Affairs (VA).  The treatment included a prescription for methadone.  
In December 2008 the appellant filed a claim for DIC under 38 U.S.C. § 1151 (2012), which provides for the award of DIC for the qualifying death of a Veteran in the same manner as if such death were service connected.  As pertinent here, in order for a death to qualify for compensation, the death must have been caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of death must have been (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. Id. The appellant argued that VA’s prescription of methadone was medically inappropriate for the Veteran and led to his suicide.
Relying on a VA medical opinion, in April 2009 a VA regional office (RO) denied the claim. The appellant appealed the denial.  Her appeal reached the Board of Veterans’ Appeals (Board) in January 2014 and again in January 2016; in each instance the Board remanded the appeal for additional development, to include an adequate medical opinion addressing the provisions of 38 U.S.C. § 1151. In May 2017 the Board denied the Veteran’s claim. The appellant then appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court).  
In April 2018 the Court remanded the matter to the Board, pursuant to a Joint Motion for Remand (JMR) in which the parties agreed that in its May 2017 decision the Board failed to consider or explain its rejection of potentially favorable evidence of record, as enumerated in the JMR. Accordingly, the Board will remand the matter for additional development, to include an addendum medical opinion addressing that evidence.
The matter is REMANDED for the following action:
1. Undertake appropriate efforts to obtain any relevant outstanding VA or private medical records, to include the 2003 edition of the “VA/DoD Clinical Guideline for the Management of Opioid Therapy for Chronic Pain,” and associate such records with the claims file.  
2. Thereafter, contact an appropriate medical professional and obtain an addendum medical opinion concerning whether the evidence of record suggests that VA afforded improper medical care or treatment to the Veteran, resulting in his suicide. 
The Veteran’s claims file must be provided to the examiner, who must note his or her review of the file. The examiner must consider and discuss the following evidence specifically identified in the JMR:
(a) the Veteran’s VA treatment records showing a history of depression and substance abuse, to include: 
(i) December 2003-December 2004 psychology notes; 
(ii) February 2005-August 2006 substance abuse treatment program (SATP), psychiatry, pain clinic, and primary care notes;
(iii) a March 9, 2005, substance treatment discharge summary; 
(iv) an August 31, 2006, SATP telephone note; 
(v) October 2006-May 2007 psychiatry, primary care, and SATP notes; and 
(vi) May 2000-July 2002 private psychiatry notes. 
 (b) VA treatment records from 2004-2005 delineating a periodic increase in the Veteran’s prescribed methadone dosage, to include: 
(i) a March 2003 prescription for 5 mg per day; 
(ii) an October 2004 prescription for 5 mg per day;
(iii) a March 2005 prescription for 7.5 mg every 8 hours; 
(iv) a March 2005 prescription for 10 mg three times a day;
(v) an April 2005 prescription for 12.5 mg every 8 hours; 
(vi) a March 19, 2008, primary care note suggesting that the Veteran’s prescription continued at this last dose from 2005 to 2008; 
(vii) an October 18, 2006, psychiatry note; and 
(viii) a November 28, 2005, pain note.
(c) indications that the Veteran was still drinking during the period from 2004-2005, to include: 
(i) a June 1, 2004 psychiatry telephone note that the Veteran’s wife smelled alcohol on his breath;
(ii) a February 23, 2005 psychiatry note that the Veteran was drinking about 5-6 beers per day for the last 6-7 months; and 
(iii) a February 23, 2005 SATP note that the Veteran was drinking 4-6 beers daily and could not remember the last time he did not drink, and was noted as being previously suicidal.
(d) an August 12, 2004 primary care physician note indicating “I’m not comfortable with prescribing [methadone] and would prefer not to [prescribe] narcotic as well for pain relief”;
(e) an August 2004 Outpatient Pain Clinic consult where the Veteran requested an increase in his Vicodin dose, but the provider noted, “I would like Pain Clinic to reeval[uate,] my goal is [to] try and avoid narc[otic] use or use some alternates instead of narcotics for pain relief”;
(f) a March 9, 2005, assessment for VA’s substance abuse treatment program noting that the Veteran “has been on methadone for 3-4 months in an attempt to wean off of the hydrocodone” – when he had actually been prescribed methadone since at least March 2003; 
(g) a July 11, 2007, Pain Clinic note stating that the Veteran “has been on a steady dose of methadone for over six months” – when he had been on methadone at that point for over four years, and on a steady dose for the past two years; 
(h) a June 1, 2004, note that the Veteran’s wife reported a suicide attempt around February 2002 when the Veteran disappeared and came back to the house after being in the car in the garage with the gas on and a hose from the exhaust into the car;
(i) the November 28, 2008 private medical opinion provided by Dr. R.L., and specifically his evaluation that the use of opiates along with alcohol intoxication “can lead to lethal outcomes”;
(j) the September 30, 2009 private medical opinion provided by Dr. R.H., and specifically his evaluation that the combination of narcotic medications as well as methadone and history of substance and alcohol abuse “could be a contributing factor to unusual behavior up to and including suicide and other acts of violence”; and
(k) the October 16, 2009 private medical opinion provided by Dr. T.W., and specifically his evaluation that “the use of methadone certainly would have the potential to exacerbate the sedating effects of alcohol and would be deemed dangerous.”
Following review of the claims file and consideration of this evidence specifically, the examiner must provide a thorough, well-reasoned opinion answering the following questions:
1. Does any of the evidence enumerated above, or any other evidence contained in the claims file, to include VA’s prescribing of methadone given the Veteran’s history of depression and substance abuse, indicate carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the Veteran hospital care, medical or surgical treatment, or examination? 
2. Did the treatment or care provided to the Veteran by VA, to include its prescribing of methadone given his history of depression and substance abuse, result in an unforeseen event (in the sense of, for example, an unforeseen medical complication)?
3. If the answer to either of the above questions is yes, did the identified problem lead to the death of the Veteran, and if so, how? 
In answering the above, the examiner is not limited to the evidence enumerated above; however, the examiner must explicitly consider each and every item enumerated above.  The examiner may discuss these items collectively, but must mention each item specifically and make clear how the discussion and rationale pertains to each item. However, the private medical opinions provided by doctors R.L., R.H., and T.W. regarding the use of methadone in combination with other substances and the possibility that such led to the Veteran’s death, must be considered, and their substantive assertions discussed, individually.
The examiner must provide a complete rationale for all opinions and conclusions expressed.  If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.).  
If the examiner determines that there are insufficient facts or data within the claims file to render the requested opinions, he or she should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. 
 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	David S. Katz, Associate Counsel