Citation Nr: 18160217 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-04 373 DATE: December 26, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for cause of Veteran's death due to VA treatment is remanded. REASONS FOR REMAND Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran served in the U.S. Navy from January 1974 to December 1977 and received the National Defense Service Medal. The Veteran was clearly a credit to the U.S. Navy and to his family, and his service to his country is greatly appreciated. The Veteran died in March 2013. The appellant is the Veteran’s surviving spouse. 1. Entitlement to compensation under 38 U.S.C. § 1151 for cause of Veteran's death due to VA treatment is remanded. A remand is warranted for further development of the claims as explained in further detail below. The appellant contends that the Veteran’s death was caused by surgery performed by the VA on his ear and specifically asserted that “[t]he persistent drainage was caused by the surgery, which led to the infection that caused his death.” See June 2016 VA Form 21-4138, Statement in Support of Claim. a) Treatment Records On review of claims file, the Board notes that the Veteran’s VA treatment records at the time of his death in March 2013 have not been associated with the claims file. Additionally, although the record contains the Sacred Heart Hospital records from June 2012 right mastoidectomy, the informed consent forms were not included. As such, the Board cannot decide the merits of his claim. A remand is required to associate the remaining VA treatment records and the informed consent form(s) with the claims file. b) VA medical opinion The Board also finds that the August 2016 VA opinion was based on an incomplete record, where, as mentioned above, the informed consent to the June 2012 mastoidectomy was not of record. Additionally, the VA examiner failed to address the appellant’s contention that the Veteran’s death was caused by post-surgery drainage and subsequent infection. Notably, the examiner does not discuss the Veteran’s surgery or post-surgery residuals but rather stated that “there was no supporting evidence in the medical records reviewed to support the above 1151 claim.” See August 2016 VA opinion Disability Benefits Questionnaire. Accordingly, a remand is warranted for a new VA opinion based review of the complete record, and which addresses the appellant’s contentions. The matter is REMANDED for the following action: 1. Associate the Veteran’s VA treatment records for the period from October 2009 to March 19, 2013 from Biloxi VA Medical Center (VAMC) with the electronic claims file. 2. The Regional Office (RO) should also obtain and associate with the claims file, the June 2012 Sacred Heart Hospital Woundcare Clinic, Veterans Administration Clinic informed consent documents as well as, any post-operative notes, follow-up surgery notes and treatment, and any other private treatment records adequately identified by the appellant with respect to this claim. All attempts to secure this evidence must be documented in the claims file. 3. After the foregoing development has been completed, the RO should obtain a new VA opinion regarding the appellant’s claim. After reviewing the complete record, including a copy of this remand, the examiner is asked to provide an opinion as to the following: (a.) Is it at least as likely as not that the Veteran had additional disabilities including death were due the right ear mastoidectomy performed at Sacred Heart Hospital Woundcare Clinic, Veterans Administration Clinic or by a VA health care provider? Please specifically address the appellant’s argument that “[t]he persistent drainage was caused by the surgery, [] led to the infection that caused his death.” See June 2016 VA Form 21-4138, Statement in Support of Claim. (b.) Is at least as likely as not that any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? (c.) Based upon the specific facts and circumstances of this Veteran’s case, was any additional disability to include death a reasonably foreseeable outcome of the right ear surgery performed at the ¬¬¬¬¬Sacred Heart Hospital Woundcare Clinic, Veterans Administration Clinic? In rendering this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional disability to be an ordinary risk of the treatment provided and would have disclosed such risk related to the treatment, regardless of what risks the treating physician actually foresaw and disclosed in the informed consent forms. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel