Citation Nr: 18152626 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 05-28 706A DATE: November 23, 2018 REMANDED Entitlement to DIC under the provisions of 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1943 to February 1946. The Veteran died in October 1998. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a January 2004 rating decision of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran’s death. An August 2007 Board decision denied the appellant’s claim. She appealed that decision to the Court. In November 2008, the Court vacated the August 2007 Board decision and remanded the matter for readjudication consistent with instructions outlined in a November 2008 Joint Motion by the parties. In February 2009, the Board remanded the case for additional development and to satisfy notice requirements in accordance with the Joint Motion. An April 2010 Board decision again denied service connection for the cause of the Veteran’s death. The appellant again appealed the denial to the Court. In November 2012, the Court issued a mandate that vacated the April 2010 Board decision on this issue and remanded the matter for readjudication consistent with instructions outlined in an August 2012 memorandum decision. In October 2015, the Board issued a remand that explained that the issue of entitlement to DIC under 38 U.S.C. § 1151 had been raised (at least as early as the July 2015 correspondence submitted by the appellant’s attorney), but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board referred that issue to the AOJ for appropriate action, and remanded the issue on appeal (entitlement to service connection for the cause of the Veteran’s death) to the AOJ as inextricably intertwined with the referred claim. In June 2016 the matter was again remanded by the Board for entitlement to service connection for cause of the Veteran’s death. In June 2017 the Board denied both the claims of entitlement to service connection for cause of the Veteran’s death and entitlement to DIC under 38 U.S.C. § 1151. The appellant appealed the denial of the § 1151 claim to the Court. In April 2018 the Court vacated the denial for entitlement to DIC under 38 U.S.C. § 1151 and remanded the matter for readjudication consistent with instructions outlined in the April 2018 JMR. The issue of entitlement to service connection for the case of the Veteran’s death was not appealed and is no longer in appellate status. In March 2017, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. 1. Entitlement to DIC under the provisions of 38 U.S.C. 1151 is remanded. The Board previously denied this issue in a June 2017 decision, in which it relied upon a January 2016 medical opinion. In that opinion the VA examiner found that as the Veteran had been placed on “comfort care” and “do not resuscitate,” the medical facility gave him pain medication as necessary and it was not at least as likely as not that his death resulted from carelessness, negligence, lack of skill or other instance of fault on the part of the attending VA personnel. In an April 2018 JMR the Court found this medical opinion not to be adequate, as the examiner failed to address whether administration of pain medication, which the Veteran was allergic to, was consistent with the degree of care that would be expected of a reasonable health care provider. In light of the foregoing, the Board finds that an addendum opinion is required that addresses the Veteran’s allergy to pain medication, the administration of pain medication, and whether the administration of such pain medication was consistent with the degree of care that would be expected of a reasonable health care provider. The matter is REMANDED for the following action: Obtain an addendum opinion from an examiner different from the January 2016 examiner, if possible. The entire claims file should be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. Provide an opinion regarding whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s death was due to a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing treatment, or b) an event that was not reasonably foreseeable. To determine whether an event was reasonably foreseeable, there must be a consideration of what a reasonable health care provider would not have considered to be an ordinary risk of the treatment and whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. The examiner must specifically address the Veteran’s allergy to pain medication, the administration of pain medication during his care, and whether the administration of such pain medication was consistent with the degree of care that would be expected of a reasonable health care provider. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel