Citation Nr: 21061353 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 18-29 114 DATE: October 1, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1963 to April 1966. He died and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 hearing and a transcript of the hearing is associated with the claims file. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death is remanded. Compensation shall be awarded for a qualifying death of a veteran in the same manner as if such death were service-connected. 38 U.S.C. § 1151. A death is a qualifying death if the death was not the result of a veteran's willful misconduct and (1) the death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701 (3)(A), and (2) 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. Id. In this case, the Veteran died in August 2016. His death certificate lists the immediate cause of his death as pneumonia. Myocardial infarction and chronic obstructive pulmonary disease (COPD) also contributed to the Veteran's death. There were no other conditions listed as contributing to the Veteran's death. The appellant contends that compensation pursuant to 38 U.S.C. § 1151 is warranted for the cause of the Veteran's death because although the Veteran sought care from VA in June 2016 for unintentional weight loss, shortness of breath, and weakness, VA failed to appropriately identify, diagnose, and begin treatment for his underlying cardiac problems, failed to admit him to the hospital for further evaluation, and sent him home with medications for bronchitis. As a result of this failure to diagnose and treat his cardiac problems, the Veteran subsequently suffered a myocardial infarction later in June 2016 and this contributed to his death. In April 2017, a VA physician reviewed the Veteran's claims file and opined that it was not likely ("less likely as not") that the Veteran's death was caused by carelessness, negligence, lack of proper skill, error in judgement, or similar fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination. The physician also noted that the Veteran's death was not reasonably foreseeable. Although the April 2017 opinion suggests that the cause of the Veteran's death was not reasonably foreseeable, the opinion is inadequate because the physician did not provide any opinion as to whether the Veteran's cause of death was actually caused or aggravated by his VA medical care. This initial determination is necessary before the Board can address whether the proximate cause of the Veteran's death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable. Therefore, a remand is necessary to obtain a new medical opinion. Also, the evidence reflects that the Veteran received treatment from McLaren Bay Region for his cardiac and lung problems in the months prior to his death. Although some records from this facility have been submitted and associated with the claims file, it does not appear that all such relevant records have been obtained. Therefore, a remand is also required to allow VA to obtain authorization and request these outstanding relevant records. The matter is REMANDED for the following action: 1. Ask the appellant to identify the location and name of any VA or private medical facility where the Veteran received treatment for cardiac disability and respiratory disability, to include the dates of any such treatment. Ask the appellant to complete a VA Form 21-4142 for all records of the Veteran's treatment for cardiac disability and respiratory disability from McLaren Bay Region and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. After all efforts have been exhausted to obtain and associate with the claim file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's cause of death was caused or worsened by VA treatment. The clinician must opine whether the Veteran's fatal pneumonia, myocardial infarction, and/or COPD at least as likely as not were caused or worsened (in whole or in part) by his treatment at the VA Medical Center (VAMC) in Saginaw, Michigan in June 2016 for unintentional weight loss, shortness of breath, and weakness (to the extent that VA failed to appropriately identify, diagnose, and begin treatment for the Veteran's underlying cardiac problems, failed to admit him to the hospital for further evaluation, and sent him home with medications for bronchitis, all of which resulted in his myocardial infarction later in June 2016). If the Veteran's fatal pneumonia, myocardial infarction, and/or COPD was as likely as not caused or worsened by his treatment at the VAMC in Saginaw, Michigan in June 2016, the clinician must also separately opine whether the Veteran's cause of death was at least as likely as not proximately caused by (a) 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. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. In this regard, the clinician must address the appellant's contentions that when the Veteran sought treatment at VA for unintentional weight loss, shortness of breath, and weakness in June 2016, VA failed to appropriately identify, diagnose, and begin treatment for the Veteran's underlying cardiac problems, failed to admit him to the hospital for further evaluation, and sent him home with medications for bronchitis, all of which ultimately resulted in his myocardial infarction later in June 2016. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.