Citation Nr: 21020867 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 12-34 044 DATE: April 8, 2021 REMANDED The issue of entitlement to Dependency and Indemnity Compensation (DIC) based on a claim under 38 U.S.C. § 1151 for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active service from August 1943 to February 1945. The Veteran died in 2007 and his widow is the Appellant. Entitlement to DIC based on a claim under 38 U.S.C. § 1151 for the cause of the Veteran’s death is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The January 2021 VA opinions are not adequate to resolve the appeal because they did not opine on whether the Veteran’s additional diagnoses associated with his simvastatin use were an additional disability due to VA treatment; whether any additional disability was due to VA carelessness or other fault [as defined below]; and whether any additional disability due to VA treatment was the proximate or contributory cause of death. 2. Return the claims file to the January 2021 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran’s treatment in November 2006 and his subsequent death in July 2007. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Given his January 2021 opinions that the Veteran likely incurred rhabdomyolysis, renal failure, and hydronephrosis due to his prolonged simvastatin use, do any of these diagnoses reflect an additional disability due to VA treatment? b) If any of these diagnoses reflect an additional disability, was the proximate cause of any additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part in furnishing the medical or surgical treatment, or due to an event which was not reasonably foreseen? c) If any of these diagnoses reflect an additional disability, was such additional disability the immediate or underlying cause of death, etiologically related to the cause of death, or did it contribute substantially or materially to the cause of death, combine to cause death, or aid or lent assistance to the production of death? Please answer each question separately. d) Did the Veteran’s rhabdomyolysis, renal failure, and/or hydronephrosis result in debilitating effects and general impairment of health to the extent that it rendered him materially less capable of resisting the effects of other disease or injury primarily causing death (i.e., was his bladder cancer so overwhelming that eventual death could be expected, irrespective of coexisting conditions, or i.e., was it just as likely that he died from cardiovascular disease and his co-morbid conditions affected his overall state of health)? e) Explain the significance of the September 2015 VA examiner’s statement that the Veteran’s renal function remained unchanged between November 2006 and July 2007 and how this corresponds to the same examiner’s statement that it was highly unlikely that the events leading up to November 2006 hospitalization would have affected the Veteran’s condition and deterioration in July 2007, given the lack of change. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * On November 13, 2006, VA treatment records indicate the Veteran’s simvastatin prescription was discontinued at the request of the Veteran and his spouse. The examiner noted that recent testing indicated hydronephrosis and renal insufficiency. See “CAPRI,” received December 16, 2014, page 14 of 163. * On November 16, 2006, an addendum VA notation indicates the Veteran had a thorough workup with his private physician. See Id., page 18 of 163. * On November 27, 2006, imaging revealed mild right and severe left hydronephrosis. See “Medical Treatment Record – Non-Government Facility,” received March 16, 2013, page 20 of 29. * December 1, 2006, progress notes regarding result of cystoscopy. See Id., page 24 of 29. * December 3, 2006, examiner notes indicate that the Veteran demonstrated among other things acute renal failure superimposed on chronic kidney disease and possible adverse reaction to Zocor (simvastatin) with possible onset of rhabdomyolysis. See Id., page 18 of 29. * December 9, 2006, discharge summary notes of 29 comorbid diagnoses. See Id., page 28 of 29. * July 2007 hospital progress notes. See “Medical Treatment Record – Non-Government Facility,” received January 6, 2015, 9 pages. * October 2007 death certificate listing natural causes as the primary cause of death. * June 2014 VA medical examination opinions. * September 2015 VA medical examination opinions. * April 2020 CAVC memorandum decision. * November 2020 Board remand directives. * January 2021 VA medical examination opinions. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 3. Following the review and any additional development deemed necessary, readjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter 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 by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board’s action is binding only with respect to this matter. It is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.