Citation Nr: 21023308 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-32 769 DATE: April 20, 2021 REMANDED Dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. Dependency and indemnity compensation for the cause of the Veteran's death pursuant to 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to January 1971. He passed away in June 2014. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision. The Appellant was afforded a hearing before the undersigned Veterans Law Judge in February 2020. 1. Dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. The Appellant contends that the Veteran’s chronic obstructive pulmonary disease (COPD) is due to exposure to herbicides during service in Vietnam. See Transcript of February 2020 Board Hearing at 6. Alternatively, she contends that the Veteran’s COPD is due to his non-service connected PTSD. The Veteran’s death certificate shows his immediate cause of death as hypoxia and COPD. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to herbicides, unless there is affirmative evidence to establish that the Veteran was not exposed to herbicides during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In this case, the Veteran’s military personnel record shows foreign service in Vietnam from March 1968 to March 1969. Therefore, exposure to herbicides is conceded. The Board cannot make a fully-informed decision on the issue of entitlement to cause of death because no VA examiner has opined whether the Veteran’s COPD was due to exposure to herbicides. Therefore, remand is necessary. 2. Dependency and indemnity compensation for the cause of the Veteran's death pursuant to 38 U.S.C. § 1151 is remanded. Alternatively, the Appellant contends the Veteran’s death is due to negligence on the part of the VA by giving him a double dose of a medication which should not have been given to the Veteran due to his breathing problems. VA treatment records reveal that on June 22, 2014, the Veteran was given 5 mg of oxycodone after 2.5 mg had been ordered. The same treatment note states that it was still a small dose, and the Veteran had been using oxycodone for the hospitalization, so unlikely this was the inciting event although possibly particularly because he had refused his BiPAP. See June 2014 VA Treatment Record. The Board cannot make a fully-informed decision on the issue of entitlement to cause of death pursuant to 38 U.S.C. § 1151 because no VA examiner has opined whether the Veteran’s cause of death was proximately caused by the given medications. Therefore, remand is necessary. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate physician (M.D.) to determine the nature and etiology of any respiratory condition, to include chronic obstructive pulmonary disorder (COPD). The entire file must be made available to the examiner, and the report should include discussion of the Veteran’s documented history and Appellant’s assertions. The examiner must opine whether it is at least as likely as not that the Veteran’s COPD is etiologically related to his military service, to include his presumed exposure to herbicides. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Obtain a medical opinion from an appropriate physician (M.D.) to determine whether the evidence of record suggests that VA afforded improper medical care or treatment to the Veteran, resulting in his death. Provide the complete claims file for review. The reviewer should identify any pertinent drug interactions, to include the overall combination and dosage of the Veteran’s prescription medication. Following review of the claims file, the examiner must provide a thorough, well-reasoned opinion answering the following questions: a) Does any of the evidence contained in the claims file, to include VA’s prescribing of oxycodone given the Veteran’s respiratory issues, indicate carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the Veteran hospital care, medical or surgical treatment, or examination? b) Did the treatment or care provided to the Veteran by VA, to include its prescribing of oxycodone given the Veteran’s respiratory issues, result in an unforeseen event (in the sense of, for example, an unforeseen medical complication)? c) If the answer to either of the above questions is yes, did the identified problem lead to the death of the Veteran, and if so, how? The examiner must provide a complete rationale for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.