Citation Nr: 20076830 Decision Date: 12/03/20 Archive Date: 12/03/20 DOCKET NO. 16-61 212 DATE: December 3, 2020 REMANDED The issue of entitlement to service connection for cause of death, to include consideration under 38 U.S.C. § 1151, is remanded. The issue of entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1960 to October 1963. The Veteran passed away in December 2014. The appellant pursues this matter as his surviving spouse. In January 2020 written correspondence, the appellant clarified that she does not wish to appear at a Board hearing. 1. Entitlement to service connection for cause of death, to include consideration under 38 U.S.C. § 1151. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, the Board finds that there should be additional development of the appellant’s claim regarding the Veteran’s claimed service in the Republic of Vietnam. During his lifetime, the Veteran contended that he “served in country in the Republic of Vietnam during the latter part of 1962.” See, e.g., Statement, August 2010. Specifically, the Veteran contended that he was there during the “Laotian Crisis.” Id. He stated that “we were sent to Laos during that crisis and went into Vietnam. No one knew we were there and we were not supposed to be there.” See VA Form 9, January 2011. Later, he contended that he “served under the operation code name of [C.G.]” and that he “went from Thailand to Vietnam to construct signal towers.” See Statement, February 2014. Upon remand, the Board asks for additional development to address the Veteran’s contentions of service in the Republic of Vietnam. In addition, the appellant seeks service connection for cause of death pursuant to 38 U.S.C. § 1151. See Application, January 2015. She contends that the Veteran underwent a surgery to repair an aortic aneurysm, but it “was not carried out properly and he never recovered from this surgery.” Id. Further, she contends that VA treatment records note “that the surgery was based on ‘inferior and poor quality CT scans’” and that these scans were performed at a VA medical facility. Id. She states that after the surgery, the Veteran “was placed on oxygen 24/7 due to edema in his feet, ankles, legs, buttocks and face. He remained on oxygen until his death.” Id. The Board notes that the Veteran’s death certificate identifies his cause of death as respiratory failure, chronic lung disease, and congestive heart failure. In addition, debility related to paraplegia as a complication from prior abdominal surgeries is listed under other significant conditions. The Board acknowledges the March 2015 VA opinion. This opinion states “that it is not uncommon that a patient with severe COPD, with a w/hx [sic] of 100 pack years of smoking, to develop Congestive Heart Failure.” However, the Board finds that a new opinion is needed to address the appellant’s contentions and the statements in the Veteran’s death certificate. Accordingly, a new opinion is requested upon remand. In connection with this claim, the Board finds that there may be records outstanding that need to be associated with the claim file. For example, in an April 2010 VA letter, Regional Counsel references an SF-95 received in March 2010 pertaining to alleged negligent care associated with a surgical procedure in April 2009. The Board has been unable to identify this document in the claim file. Upon remand, the Board asks that it be associated with the record. In addition, it is unclear to the Board whether the Veteran was receiving disability benefits from the Social Security Administration (SSA). In an October 2009 letter, he stated that he was “not drawing Social Security Disability;” however, in a March 2014 Authorization Form he wrote “we can barely survive on SS.” Since the Board is remanding this matter, it will take the opportunity to obtain any relevant records from the SSA, if available. Finally, the Board notes that there is a document, identified as a medical record, located the electronic docket at April 25, 2018, that the Board is unable to open. Upon remand, the Board asks that this document be made accessible for review. 2. Entitlement to accrued benefits. In July 2015, the RO denied appellant’s claim for accrued benefits, as well as DIC. In April 2016, the appellant submitted a statement that was accepted as a timely notice of disagreement (NOD) as to the DIC claim, and a Statement of the Case (SOC) was issued as to that issue. However, in her April 2016 statement, the appellant clearly indicated that she was also filing regarding the denial of accrued benefits. Accordingly, the Board finds that a remand is needed as to this issue for the purpose of obtaining an SOC. See 38 C.F.R. § 19.9 (c); Manlicon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. Furnish a SOC as to the issue of entitlement to accrued benefits. Only if the appellant perfects an appeal should this issue be certified to the Board following completion of any necessary development. 2. Upon completion of the above, and after securing any necessary consent forms, obtain any outstanding records, to include any VA and/or private treatment records, pertaining to the issue on appeal. In addition, obtain relevant records from the SSA pertaining to any application or award of disability benefits to the Veteran. In addition, attempt to verify the Veteran and appellant’s contentions regarding his service in the Republic of Vietnam. During his lifetime, the Veteran contended that he “served in country in the Republic of Vietnam during the latter part of 1962.” See, e.g., Statement, August 2010. Specifically, the Veteran contended that he was there during the “Laotian Crisis.” Id. He stated that “we were sent to Laos during that crisis and went into Vietnam. No one knew we were there and we were not supposed to be there.” See VA Form 9, January 2011. Later, he contended that he “served under the operation code name of [C.G.]” and that he “went from Thailand to Vietnam to construct signal towers.” See Statement, February 2014. The Veteran asked that the Department of Defense be contacted to obtain any records that have been declassified about the Laotian Crisis and the participation of the [redacted] Signal Battalion in 1962. See VA Form 9, January 2011. Upon remand, the Board asks for additional development to address the Veteran’s contentions of service in the Republic of Vietnam. In addition, in a June 2010 VA letter, Regional Counsel references an SF-95 received in March 2010 pertaining to alleged negligent care associated with a surgical procedure in April 2009. The Board has been unable to identify this document in the claim file. Upon remand, the Board asks that it be associated with the record. Further, the Board notes that there is a document, identified as a medical record, located the electronic docket at April 25, 2018, that the Board is unable to open. Upon remand, the Board asks that this document be made accessible for review. All efforts should be documented in the claim file. If any action could not be completed, this should be noted in the claim file. 3. Upon completion of the above, obtain an opinion from a VA examiner to address whether it is at least as likely as not that the Veteran’s death: (a) Was the result of the Veteran’s willful misconduct; or (b) Was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 38 U.S.C. § 1701(3)(A); and (c) The proximate cause of the Veteran’s death was either: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. In drafting the opinion, the examiner should also address the following: (1) Whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider and whether the Veteran received informed consent pursuant to 38 C.F.R. § 17.32 for all applicable VA care. (2) The appellant’s contentions cited above, specifically: (i) that the Veteran underwent a surgery to repair an aortic aneurysm, but it “was not carried out properly and he never recovered from this surgery.” See Application, January 2015; (ii) that VA treatment records note “that the surgery was based on ‘inferior and poor quality CT scans’” and that these scans were performed at a VA medical facility. Id.; (iii) that after the surgery, the Veteran “was placed on oxygen 24/7 due to edema in his feet, ankles, legs, buttocks and face. He remained on oxygen until his death.” Id. Please also address her contention that “the surgery was not performed as was told to us before surgery . . .” See NOD, April 2016. (3) The Veteran’s death certificate, which identifies his cause of death as respiratory failure, chronic lung disease, and congestive heart failure. In addition, debility related to paraplegia as a complication from prior abdominal surgeries is listed under other significant conditions. (4) The March 2015 VA opinion which states “that it is not uncommon that a patient with severe COPD, with a w/hx [sic] of 100 pack years of smoking, to develop Congestive Heart Failure.” (5) A statement from the Veteran in August 2010, in which he states that he was “found to have congestive heart failure in 2009 but no one told me this until recently and I was not placed on medication for this condition until recently. I feel that (the lack of treatment) was due to negligence on the part of the hospital staff.” In addition to the above, the Board asks that an examiner address whether it is at least as likely as not that the Veteran’s heart disability and/or aneurysm can be considered “[i]schemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina)” as contemplated under 38 C.F.R. § 3.309(e). The Board notes that, pursuant to Note 2: “The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.” 38 C.F.R. § 3.309(e). Please see article referenced by appellant, entitled Aneurysmal coronary artery disease. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided.   4. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. F., Associate Counsel 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.