Citation Nr: 21023945 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-42 515A DATE: April 21, 2021 REMANDED Entitlement to service connection for cause of the Veteran’s death, to include compensation under 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to February 1974. He died in February 2013 and the Appellant is his surviving spouse. She appeals a June 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for cause of the Veteran’s death. This appeal has been remanded for further development by the Board of Veterans’ Appeals (Board) three times and is now back before the Board. In November 2020, the Board remanded the appeal for a reviewing clinician to properly address the Appellant’s 38 U.S.C. § 1151 contention. Specifically, she contends the Veteran’s VA caregivers in Puerto Rico did not provide the Veteran with “the necessary treatment for his [liver] cancer” and the Veteran was not informed he had liver cancer despite “never missing an appointment;” the Appellant contends the Veteran only learned of his cancer after moving to Florida in 2011. See January 2016 VA Form 9. The December 2020 medical opinion provided by the reviewing clinician is inadequate for Board adjudication purposes as it is conclusory and provides no rationale. The reviewing clinician also merely stated “records have been reviewed” without showing any evidence of the same. See December 2020 VA medical opinion. Additionally, it appears there is some confusion regarding the Appellant’s contentions as the April 2020 clinician opined on whether the Veteran’s use of psychotropic drugs for his service-connected schizophrenia caused his thrombocytopenia. See April 2020 VA medical opinion. Additionally, the Veteran’s private physician opined the Veteran’s “thrombocytopenia condition may” have been related to his psychotropic medications and “may have caused/aggravated his liver disease.” See May 2013 Dr. F.P. medical opinion. The Appellant contends the Veteran’s use of psychotropic drugs contributed to his death, which the February 2013 death certificated listed as “end stage liver disease.” See May 2013 VA Form 21-4138 (“having been prescribed the medications known to cause the condition listed on his death certificate”). No reviewing clinician has provided an adequate opinion regarding this alternative contention; thus, a remand is required to obtain adequate opinions regarding both of the Appellant’s claims. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriately qualified clinician, other than the clinician who provided the December 2020 medical opinion, to determine the nature and etiology of the Veteran’s fatal end stage liver disease, to include as secondary to the Veteran’s service-connected schizophrenia. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. After a thorough review of the record, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Veteran’s end stage liver disease was (1.) caused OR (2.) aggravated by his service-connected schizophrenia, to include the longterm use of prescribed psychotropic drugs? The reviewing clinician is directed to the following VA treatment records: (a) March 1975 record noting prescriptions for Trilafon, Cogentin, Dalmane, and Thorazine; (b) November 1975 record noting treatment with Thorazine 100mg, Cogentin 2mg, Valium 10mg, and Noluder 300mg; (c) April 1977 record noting Thorazine was discontinued for 100mg Mellaril in the morning and 200mg at bedtime in January 1977; (d) August 1980 record noting the Veteran was on 200mg Thorazine; 1 tab Triclos; (e) June 1974 record noting treatment with Thorazine and Elavil; (f) July 2005 record noting treatment with Alprazolam, Citalopram hydrobromide; and, (g) July 2006 and 2012 records noting prescriptions for Fluoxetine, Clonazepam, Abilify, and Sertraline. The reviewing clinician is further directed to the May 2013 Dr. F.P. medical opinion, submitted in October 2013, noting the Veteran’s “thrombocytopenia condition may” have been related to his psychotropic medications which “may have caused/aggravated his liver disease.” The reviewing clinician is also directed to the May 2013 VA Form 21-4138 Appellant statement contending the Veteran was “prescribed [psychotropic] medications known to cause the condition listed on his death certificate,” end-stage liver disease. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the clinician must provide the reasons why an opinion would require speculation. As such, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain an opinion from an appropriately qualified clinician, other than the clinician who provided the December 2020 opinion, to determine whether the Veteran sustained additional liver disabilities as a result of VA treatment or lack of VA treatment in Puerto Rico prior to 2011. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. After a thorough review of the record, to include all VA treatment records from VA facilities in Puerto Rico, the reviewing clinician should answer the following: (a). Did the Veteran suffer additional disabilities, to include liver cancer and/or liver failure, as a result of treatment or lack of treatment at VA facility(ies) in Puerto Rico prior to 2011? If so, each additional disability should be clearly identified. (b). For each additional disability, is it at least as likely as not (i.e., a probability of 50 percent or greater) that such is the result of, or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination? (c). Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (d). Was the additional disability due to an event that was not reasonably foreseeable? [Note: The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.] The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In rendering this opinion, the reviewing clinician is advised that the Appellant is competent to report the Veteran’s symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Appellant’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Appellant and her representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.