Citation Nr: 1806436 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-16 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cause of death of the Veteran. REPRESENTATION Appellant represented by: N. Albert Bacharach, Jr., Attorney ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1948 to March 1952. The Veteran died on July [redacted], 2009. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. The Veteran appeared before the undersigned Veterans Law Judge in a March 2015 Board Hearing at the RO. A copy of the transcript is of record. REMAND Although further delay is regrettable, the issue of entitlement to service connection for cause of death of the Veteran must be remanded for further development. The Appellant, through counsel, contends that a service-connected disability caused the Veteran's death. Specifically, that hearing loss prevented the Veteran from hearing or understanding medical instructions to take probiotics with VA prescribed antibiotics, and that taking antibiotics without probiotics caused clostridium difficile colitis, and led to death. A Florida Certificate of Death indicated the immediate cause of death as clostridium difficile colitis, with underlying causes of tracheobronchitis treated with antibiotics, and COPD. The attending physician reasoned the colitis was caused by antibiotics given for bronchitis, which was likely the result of chronic obstructive pulmonary disease (COPD). The physician also reasoned that an underlying bone marrow process likely contributed to the cause of death. At the time of death, the Veteran was service connected for bilateral hearing loss, tinnitus, hemorrhoids, residuals of ringworm, and a bacterial infection of the right lower extremity. During the Board hearing, counsel raised the contention that the Veteran's death was due to negligence on behalf of VA doctors. Specifically, that it was negligent to provide oral medical instructions to a Veteran rated 100 percent disabled for hearing loss during a June 2009 appointment, and then to provide antibiotics without probiotics when the Veteran was admitted to the hospital in July 2009. The Board acknowledges that this issue has not yet been adjudicated by the Agency of Original Jurisdiction. However, the Board finds that the issue falls within the primary issue on appeal of entitlement to service connection for the cause of the Veteran's death and therefore falls under the Board's jurisdiction. As the issue has not yet been adjudicated in the first instance, the Board finds that remand is warranted to provide the appellant with proper notice pertaining to the intertwined issue of whether benefits should be granted for an additional disability under 38 U.S.C. § 1151 (2012), and for additional medical development. Accordingly, the case is REMANDED for the following action: 1. Provide the Appellant with notice of the evidence and information necessary to substantiate a claim for benefits pursuant to 38 U.S.C. § 1151 (2012). 2. Obtain an addendum opinion from an appropriate VA doctor. The doctor should review the claims file, to include this remand, and note that review in the opinion. The doctor should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that clostridium difficile colitis, tracheobronchitis, or COPD was incurred during service, or is due to any event, disease, or injury during service? (b) Is it at least as likely as not (50 percent or greater probability) that clostridium difficile colitis, tracheobronchitis, or COPD was due to or the result of a service-connected disability, to include hearing loss? (c) Is it at least as likely as not (50 percent or greater probability) that clostridium difficile colitis, tracheobronchitis, or COPD was aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability, to include hearing loss? (d) Is it at least as likely as not (50 percent or greater probability) that clostridium difficile colitis, tracheobronchitis, or COPD was an additional disability caused by VA treatment? Specifically, is it at least as likely as not (50 percent or greater probability) that VA physicians failed to treat the Veteran by not providing written medical instructions, to a Veteran 100 percent disabled for service-connected hearing loss, to take probiotics with prescribed antibiotics, and by not providing probiotics with antibiotics while admitted into the Malcom Randall VA Medical Center; and whether a physician exercising the degree of skill and care ordinarily required of the medical profession, reasonably should have provided written medical instructions, to a Veteran 100 percent disabled for service-connected hearing loss, to take probiotics with prescribed antibiotics, and should have provided probiotics with antibiotics while admitted into the Malcom Randall VA Medical Center. If so, is it at least as likely as not (50 percent or greater probability) that clostridium difficile colitis, tracheobronchitis, or COPD represents an additional disability caused by VA treatment that was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or was an event not reasonably foreseeable? 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. § 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).