Citation Nr: 21032122 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-16 853 DATE: May 25, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from July 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran died in February 2010 and his widow is the appellant. The appellant appeared before the undersigned Veterans Law Judge in a September 2020 video hearing, a transcript of which has been attached to the record. 1. Entitlement to DIC under 38 U.S.C. § 1151 is remanded. The appellant asserts that the Veteran's death is a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA during his February 2010 stay at the VA medical center (VAMC) in Baltimore, MD. The Veteran's death certificate lists his causes of death as non-ischemic cardiomyopathy (a generic term for decreased heart function not caused by heart attacks or coronary blockages) and electrical storm. Treatment records indicate the Veteran reported to a private hospital in early February 2010 when his implanted pacemaker/defibrillator activated five times in one day (electrical storm). According to private treatment records, he was described as alert, fully oriented, verbal and ambulant with no acute distress before being transferred to the VAMC for insurance purposes, where he remained for 19 days until his death. At the Board hearing, the appellant testified that two days after his admission, the Veteran was recorded as independent in activities of daily living, and when she visited him three days later he was restrained to the bed, was non-verbal and disoriented. She stated she was never given an explanation for this decline. VA treatment records note that the day after noting this decline, the appellant gave her husband water, which treating clinicians felt caused aspiration leading to a "Code Blue" medical emergency and subsequent intubation. The appellant testified that, contrary to the VA medical records, an acquaintance of the Veteran who was also a VA employee gave her husband the water. The Board observes that the AOJ obtained expert medical opinion regarding the Veteran's death in February 2015. The examiner opined that the Veteran's death was less likely than not due to negligence in care on the part of the VAMC, but failed to provide a rationale beyond stating that based upon a review of the claims file, all appropriate medical care was provided. This opinion only addressed VA care over the final three days before the Veteran's death and was based upon VA treatment records which note "the patient's wife was present and the decision to not reintubate was made." Regardless of the disputed facts, as this opinion does not provide a sufficient supporting rationale, it is inadequate, and an addendum is required. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). The Board also observes that the VA opinion does not address the severe decline in functioning the Veteran experienced over his first weekend at the VA hospital, which the appellant asserts contributed to his decline and eventual death. Additionally, VA treatment records note a "do not resuscitate" (DNR) order on file, while the appellant vehemently denies ever signing such an order and notes her husband was nonverbal on the date the order was allegedly signed. While the claims file contains a DNR, it is not signed, and VA progress notes dated a week after the DNR state "as far as I can tell from speaking from both his wife and him if he develops respiratory failure he is to be reintubated." On remand, the AOJ must attempt to obtain a signed copy of the DNR, as well as aid the appellant in further developing her claim. The matters are REMANDED for the following action: 1. Attempt to obtain a copy of the February 2010 DNR authored by Doctor M.M. and signed by the Veteran or appellant; encourage the appellant to submit any additional evidence, particularly with regard to the dispensation of water resulting in a "Code Blue." 2. Then, obtain an addendum opinion regarding the nature and circumstances of the Veteran's VAMC admission and eventual death. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's 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 care? 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 death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's death; AND (A) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; OR (B) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent OR (C) whether any event(s) not reasonably foreseeable caused or materially contributed to the cause of death? In answering these questions, the examiner is asked to specifically address the Veteran's entire February 2010 stay at the VAMC, including his full independence with ADL at admission and apparent steep decline in health during the first weekend, as well as whether a signed DNR was on file at the time of the Veteran's death. If a signed DNR is not present, the examiner's attention is directed to the appellant's statements disputing the progress notes indicating she did not want the Veteran reintubated and the treating physician's note stating "as far as I can tell from speaking from both his wife and him if he develops respiratory failure he is to be reintubated." The examiner is free to comment whether it is accepted medical practice to obtain a DNR request either verbally and/or a signed waiver. A full rationale for any opinions must be provided. In the event that a requested opinion cannot be rendered without resorting to speculation, please provide a rationale for this conclusion. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.