Citation Nr: 20003084 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 17-02 757 DATE: January 15, 2020 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran had active service from January 1958 to January 1962. The Veteran died in June 2015. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. The appellant submitted a notice of disagreement (NOD) in September 2016. A statement of the case (SOC) was issued in November 2016. The appellant perfected her appeal with the timely submission of a VA Form 9 in January 2017. The appellant testified before the undersigned Veterans Law Judge in August 2019; a transcript is of record.   Entitlement to DIC under 38 U.S.C. § 1151. The appellant claims entitlement to DIC under 38 U.S.C. § 1151. The Veteran died in June 2015; his Certificate of Death reflects that the immediate cause of death was cardiopulmonary arrest, due to or as a consequence of carcinoma of the lung and tobacco abuse. The appellant’s primary contention, in short, is that the right lung mass biopsy performed by VA on November 12, 2014, with subsequent complications of pneumothorax, hypoxemia, bradycardia, chest tube insertion, and arterial puncture, damaged and/or weakened the right lung and hastened the Veteran’s June 2015 death. The appellant testified that the Veteran’s health declined rapidly after the November 2014 procedure. See Board Hearing Transcript, p. 7. She essentially alleges that the right lung biopsy/puncture was the result of negligence on the part of VA. Under 38 U.S.C. § 1151, DIC compensation shall be awarded for a qualifying death of a veteran in the same manner as if such death was service-connected, if such death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the death was (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. See also 38 C.F.R. § 3.361 (2018). The proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's death, it must be shown that such hospital care, medical or surgical treatment, or examination caused the Veteran's death, and 1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's, informed consent. 38 C.F.R. § 3.361 (d)(1). A July 2016 VA medical opinion was obtained, but the VA examiner did not specifically address whether the November 2014 right lung mass biopsy with subsequent complications of pneumothorax, hypoxemia, bradycardia, chest tube insertion, and arterial puncture, proximately caused the Veteran's death in June 2015, and if so, whether it was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Therefore, on remand, a new VA medical opinion should be obtained to address these outstanding medical questions. The appellant alternatively asserts that VA was negligent or otherwise at fault for failing to treat the Veteran in a timely manner following his initial cancer diagnosis in April 2015. The appellant testified that a period of 7 weeks elapsed between the Veteran’s initial cancer diagnosis in April 2015 and VA’s scheduling of his first radiation appointment in June 2015. Notably, the Veteran never actually received any radiation treatment because he died prior to the scheduled appointment. In short, the appellant alleges that VA's failure to properly/timely treat the Veteran's non-small cell lung carcinoma with radiation was the proximate cause of the natural progress of the disease that ultimately caused his death. In that regard, 38 C.F.R. § 3.361 (c)(2) provides that hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. With respect to the appellant’s theory regarding delayed treatment (radiation), the July 2016 VA examiner did not specifically address whether failure by VA to offer/schedule radiation treatment on or around April 2015, when the non-small cell lung carcinoma was first diagnosed, or at any time prior to June 2015, proximately caused the continuance or natural progress of the Veteran's lung cancer, and if so, whether such failure was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. Therefore, on remand, a new VA medical opinion should be obtained to address these outstanding medical questions. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion to clarify whether it is "at least as likely as not" that the right lung mass biopsy performed by VA on November 12, 2014, with its subsequent complications of pneumothorax, hypoxemia, bradycardia, chest tube insertion, and arterial puncture, proximately caused the Veteran's death in June 2015. If so, the examiner should also address whether the right lung mass biopsy and/or its complications was/were (a) the result of 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. Please explain to the VA examiner that it is the appellant's contention that the right lung mass biopsy with its subsequent complications damaged and/or weakened the Veteran’s pulmonary/lung function and thus hastened his death. Also, please explain to the VA examiner that "an event not reasonably foreseeable" is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment. Finally, please ask the VA examiner to address whether the failure by VA to offer/schedule radiation treatment on or around April 2015, when the non-small cell lung carcinoma was first diagnosed, or at any time prior to June 2015, proximately caused the continuance or natural progress of the Veteran's lung cancer, and if so, whether such failure was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. In other words, did VA fail to timely diagnose and properly treat the Veteran’s lung cancer, and if so, did this failure proximately cause the continuance or natural progress of the disease. Please explain to the VA examiner that it is the appellant’s contention that the Veteran waited approximately 7 weeks from the time of the initial cancer diagnosis in April 2015, to the time of his first scheduled radiation appointment in June 2015. A review of the pertinent VA records shows that the Veteran was diagnosed with non-small cell lung carcinoma on April 11, 2015 (see pathology report); an outpatient hematology/oncology consult was placed at that time. Notably, there is no indication in the available VA records that the Veteran cancelled or failed to attend any of his VA oncology/hematology appointments after he was diagnosed with non-small cell lung carcinoma diagnosis in April 2015. Next, a May 14, 2015, VA medical note indicated that the Veteran’s treating physician put in a request for non-VA radiation treatment because the VA facility did not provide the required service. On May 22, 2015, a VA notation reflects that the appellant called VA “stating they still have not heard anything about radiation and they are anxious to get started.” The request for outside/non-VA treatment was subsequently approved on May 23, 2015. A copy of the authorization/referral packet was sent to the Veteran on May 27, 2015. The Veteran subsequently died less than one week later having not received any radiation treatment for his cancer. Any opinion must be accompanied by a complete rationale. 2. Readjudicate the appellant's claim. If the claim remains denied, the appellant should be provided a Supplemental Statement of the Case (SSOC). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.