Citation Nr: 25005403 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 16-08 437 DATE: April 22, 2025 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1967 to June 1970. The Veteran passed away in February 2014. The appellant seeks benefits as the Veteran's surviving spouse. In March 2021, a virtual hearing was held before the undersigned Veterans Law Judge (VLJ). This case has a lengthy procedural history. Most recently, in March 2024, the Board denied entitlement to DIC under § 1151 for the cause of the Veteran's death. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and the parties submitted a joint motion for remand (JMR). By Order dated in January 2025, the Court granted the JMR and vacated the Board's March 2024 decision and remanded the matter for action consistent with the JMR. 1. Entitlement to DIC under 38 U.S.C. § 1151 The Veteran underwent a left hip total arthroplasty on January 15, 2014, which appears to have been without complication from an orthopedic surgery standpoint. The Veteran, however, developed abdominal issues resulting in additional surgery and ultimately his death. The death certificate lists the immediate cause of death as multiorgan system failure (days) due to septic shock (weeks) due to bowel perforation (January 18, 2014). Significant conditions contributing to death but not resulting in the underlying cause were listed as atrial fibrillation and Wegener's granulomatosis. Pursuant to the JMR, the parties agreed that the Board erred by not providing an adequate statement of reasons or bases. Specifically, that in concluding that informed consent was accomplished, it did not assess whether a reasonable person in similar circumstances would have proceeded with the procedure even if advised that he could suffer from ileus, fecal impaction, sepsis, or death as a result of the surgery in violation of McNair v. Shinseki, 25 Vet. App. 98 (2011). Accordingly, a reasons or bases remand was warranted for the Board to address this. The Board clarifies that when addressing informed consent in its prior decision, the statement "that the consent form did not specifically list ileus, fecal impaction, sepsis, or death as known risks" was in the context of the actual procedure (total hip arthroplasty). The Board observes that "death" was listed in the consent form as a rare but serious complication of both anesthesia and the use of blood products. Thus, the Veteran was clearly advised that death was a potential risk. The parties also agreed that the Board erred by not ensuring substantial compliance with the directives of the March 2023 remand order which directed the examiner to "accept as fact that the Veteran's left hip surgery resulted in complications which caused his death." That is, while the November 2023 VA examiner addressed proximate causation, she also provided an opinion addressing actual causation. Thus, the parties agreed that a remand is warranted for a new medical opinion wherein the examiner accepts that actual causation is established. In the October 2024 Rule 33 Summary of Issues, the appellant argued that the November 2023 opinion on proximate causation was based on finding no actual causation and thus, prejudicial to the Veteran. The Board observes, however, that the opinion on proximate causation is not based on the absence of actual causation, but rather is supported by extensive rationale specifically addressing the questions of fault and foreseeability. Accordingly, the Board does not find the November 2023 proximate causation opinion wholly inadequate or without probative value. Nonetheless, and in an effort to comply with the JMR, the Board will request an additional opinion on proximate causation as directed, to include obtaining additional information to address key factors (e.g., the consequences of proceeding with surgery versus foregoing surgery) upon which one might evaluate whether a reasonable person would have proceeded with the procedure. See McNair at 107-108. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate examiner (other than the physician who provided the November 2023 opinion) to address the claim for DIC benefits under 38 U.S.C. § 1151 for the cause of the Veteran's death. The claims folder must be available for review. ACTUAL CAUSATION is conceded for purposes of this opinion and the examiner must accept as fact that the Veteran's left hip surgery resulted in complications which caused his death. The examiner is asked to limit his/her opinion to the following PROXIMATE CAUSATION questions: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that the Veteran's death was proximately caused by: Carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA? Did VA fail to (i) exercise the degree of care that would be expected of a reasonable health care provider? Or (ii) furnish the treatment without informed consent? In addressing informed consent, the examiner is asked to indicate the scope of information typically provided to a patient regarding the consequences of proceeding with a total hip replacement versus foregoing the surgery. (b.) Is it at least as likely as not that the Veteran's death was proximately caused by an event not reasonably foreseeable? In making this determination, the examiner is notified that whether the proximate cause of a Veteran's death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 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. (Continued on the next page) ? 2. The AOJ must ensure that the requested opinion is responsive to the above directives and that it addresses only the elements of proximate causation. If the examiner denies actual causation, the opinion must be returned as inadequate. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.