Citation Nr: 21031837 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-42 288 DATE: May 24, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include service connection for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1961 to January 1965. The Veteran died in November 2012, and his death certificate indicates that the immediate cause of death was respiratory arrest as a consequence of massive brainstem stroke with midline shift. See Death Certificate (November 2012). He had not established service connection for any disabilities during his lifetime. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. An August 2019 Board decision denied the appellant's claim for entitlement to DIC benefits, to include service connection for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C. § 1151. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) and, in a December 2020 Court Order, the Court granted the Joint Motion, vacating the Board's August 2019 decision and remanding the matter for compliance with the Joint Motion. Entitlement to DIC benefits, to include service connection for the cause of the Veteran's death pursuant to the provisions of 38 U.S.C. § 1151, is remanded. The appellant, and her representative, contends that the Veteran's death resulted from VA treatment. In this regard, the appellant argues that VA "inacurately [sic] administered treatment and such carelessness and error in judgement was cause for aggravation of [the Veteran's] injury and disabling stroke." See NOD (November 2015). For reasons explained below, the Board finds that remand is necessary. First, remand is required to attempt to obtain reasonably identified relevant outstanding treatment records. In this regard, the record reasonably identifies relevant outstanding non-VA treatment records. Specifically, the record reveals that the Veteran was taken to the emergency room at Lake Region Healthcare for a possible stroke in November 2012; the record, however, does not show any attempt by VA to obtain private treatment records from Lake Region Healthcare, to include asking the appellant to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the appellant's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is required to allow VA to obtain these records. Second, it is noted that when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The claimant must show some degree of fault, and more specifically, that the proximate cause of disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Accordingly, remand is also necessary for a VA medical opinion in light of any private treatment records obtained during remand status. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (an adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and be based on an accurate factual premise with consideration of a veteran's prior medical history). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the appellant's assertions. Neither the appellant's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Ask the appellant to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of the Veteran's stroke, to include from Lake Region Healthcare. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's cause of death. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions (e.g. the Veteran's cause of death stems from VA care, or lack thereof), and (iii) the medical evidence of record. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). In rendering the below, the clinician should address the appellant's theory that the Veteran was inaccurately administered treatment, and that such carelessness and error in judgement caused for aggravation of his injury and disabling stroke. The clinician should also consider and comment on the hospital care and medical treatment received by the Veteran from the time of his admission to death at the Fargo VA medical center in November 2012. The clinician must opine on: (a) Did the Veteran sustain "additional disability" or was his death caused by VA hospital care, medical or surgical treatment, or examination? If so, the additional disability should be clearly identified. Explain If there is no "additional disability" or death caused by VA hospital care, medical or surgical treatment, or examination, then the clinician does not need to provide answers to (b) and (c). 38 U.S.C. § 1151(a)(1)(A) (b) If the Veteran had additional disability or death caused by VA hospital care, medical or surgical treatment, or examination, is it at least as likely as not that the proximate cause of such was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? Explain. Note: In determining whether the proximate cause of disability/death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. 38 U.S.C. § 1151(a)(1)(B) (c) If the Veteran had additional disability/death caused by VA hospital care, medical or surgical treatment, or examination, is it at least as likely as not that this additional disability/death was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed on the informed consent (i.e. primary health care provider explains the reasonably foreseeable risks associated VA treatment or services furnished to the Veteran)? 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.