Citation Nr: 21022460 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-33 103 DATE: April 15, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1957 to February 1961. He died in December 2006, and the appellant is his surviving spouse. This appeal comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 Department of Veterans Affairs (VA) rating decision. An October 2019 Board decision reopened the appellant’s claim for service connection for the cause of the Veteran’s death and denied the claim on the merits. The appellant appealed the part of the Board’s decision denying service connection for the cause of the Veteran’s death under 38 U.S.C. § 1151 to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2020 Memorandum Decision, the CAVC vacated the Board’s decision and remanded the matter to the Board for further proceedings consistent with the decision. Entitlement to service connection for the cause of the Veteran’s death In its Memorandum Decision of July 2020, the CAVC described in detail various deficiencies in the October 2019 Board decision denying service connection for the cause of the Veteran’s death under 38 U.S.C. § 1151. Specifically, the CAVC found that the Board provided inadequate reasons and bases for denying the claim, stating that there was an insufficient explanation as to the listing of “shock” as a cause of the Veteran’s death on his death certificate. In other words, it was unclear whether there was any relationship between the shock listed on the death certificate and the documented septic shock the Veteran experienced in August 2006, a few months before his death. The CAVC also found that the Board relied on an inadequate VA medical opinion of August 2015. Regarding urosepsis as a “known complication,” the examiner was ambiguous about many aspects of catheter occlusion and replacement and about the evidence to support her opinion. She also did not address the standard of care and failed to explain why the Veteran’s death was not related to urosepsis in light of septic shock being listed as a cause of his death. It was further noted that the examiner barely mentioned medical treatment records in the months following the August 2006 VA catheter replacement procedure and hospitalization, when the Veteran suffered additional urinary tract infections that required hospital treatment. Finally, the CAVC found that the Board provided inadequate reasons and bases in regard to whether there was informed consent for the catheter replacement procedure in August 2006, in accordance with 38 C.F.R. § 17.32. Given the foregoing, the Board finds that further development, to include obtaining additional VA records and a new medical opinion, is necessary to decide the claim. The matter is REMANDED for the following action: 1. Secure for association with the claims file any VA consent forms, signed by the Veteran, before he underwent his Foley catheter replacement procedures on a routine basis during the period from January 2006 to August 15, 2006. Attempts to locate any consent forms should be documented in the record, and the appellant should be notified if the attempts were unsuccessful. If the procedure is such that a written consent would not be required, secure an opinion (by a medical provider familiar with consent form requirements) explaining that. 2. Arrange for the Veteran’s claims file to be sent to an appropriate physician for review and an advisory medical opinion that responds to the following questions. For each, where applicable, an affirmative answer should be provided if it is at least as likely as not (a 50 percent or greater probability): (a). What, if any, additional disability was caused or aggravated by the replacement of the Veteran’s Foley catheter by a VA nurse on August 15, 2006? Please comment on the statements of the appellant, alleging that the catheter was improperly replaced. (b). Did the Foley replacement procedure in August 2006 cause or lead to an infection resulting in urosepsis and the Veteran’s hospitalization for septic shock in August 2006? Is urosepsis a known complication of both a correct and an incorrect Foley catheter replacement, and what is the likelihood that in the Veteran’s case an incorrect catheter placement would have led to urosepsis? What complications may arise from a catheter being occluded or the bag being placed upside down for three hours? Is catheter occlusion a breach of the standard of care that applies to Foley catheter replacement procedures? (c). Is there any relationship between the Veteran’s diagnosed septic shock in August 2006 and the shock listed on his death certificate as a cause of death? Is the Veteran’s death due to his urosepsis, given the medical evidence showing additional urinary infections that necessitated inpatient care after the August 2006 catheter replacement (but not before it, when he was seen regularly from January 2006 to May 2006 for catheter replacement procedures without complications)? (d). Does a Foley catheter replacement procedure have a low risk or a high risk of significant consequences that a patient might reasonably want to consider as part of the decision in giving informed consent? What are the foreseeable consequences if the Veteran had failed to undergo his Foley catheter replacement procedure in August 2006? (e). Is any additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA personnel in furnishing care and medical treatment? (f). If the answer to (e) is “no” (i.e., there was no VA fault in the care provided), opine further whether the additional disability is NOT a reasonably foreseeable consequence of the VA care (replacement of the Foley catheter in August 2006) that the Veteran was provided. [A consequence that is not “reasonably foreseeable” need not be completely unforeseeable or unimaginable but is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise (regardless whether the particular surgical risk was noted on an operative consent form the Veteran signed).] Complete rationale, with citation to relevant evidence, supporting factual data, and medical literature, as appropriate, should accompany all opinions. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.