Citation Nr: 18154184
Decision Date: 11/30/18	Archive Date: 11/29/18

DOCKET NO. 18-38 473
DATE:	November 30, 2018
Entitlement dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 is remanded.

The Veteran served on active duty from September 1951 to July 1964.  He died in October 1993.  The appellant is the Veteran’s surviving spouse.
This matter came to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  
The Board will defer a decision on the nature and finality of the December 1993 rating decision, to include whether a DIC pursuant to 38 U.S.C. § 1151 claim was reasonably raised and/or implicitly denied.  The issue is being addressed by the RO as part of the clear and unmistakable error (CUE) motion referenced in the May 2018 Statement of the Case, and will also be addressed if the claim is granted and an effective date assigned.

1. DIC under 38 U.S.C. § 1151
The appellant has contended that the Veteran’s death is due to the medical care furnish to him by VA.  
In October 1993, the Veteran died in a VA hospital.  The appellant reported that the Veteran became infected in the VA hospital after undergoing CABG surgery on September 16, 1993, and developed pneumonia.  See October 2018 Motion to Advance on Docket.  The Veteran’s death certificate lists the immediate cause of death as multi-organ failure/sepsis, due to pneumonitis, and massive myocardial infarction, preoperative.  Other significant contributing conditions were noted to be coronary artery disease and coronary artery bypass graft – September 16, 1993.
In a January 2017 statement, the appellant indicated that VA medical records showed that her husband went into the hospital for a catherization and possible placement of a stent, and never regained consciousness.  The appellant asserted that the Veteran’s VA physician told her that something went wrong to cause his demise.  The appellant is competent to report what a physician told her.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  
The claims folder does not contain a medical opinion as to whether the Veteran’s cause of death was a result of VA medical care based on carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing the hospital care, medical or surgical treatment, or examination; or that the Veteran’s subsequent death was an event not reasonably foreseeable.  As such, the Board finds that a medical opinion is necessary prior to adjudicating the claim.
The matter is REMANDED for the following action:
1. Obtain an opinion from an appropriate specialist physician.  The claims file should be made available for the physician to review, and the report should reflect that such review was accomplished.  The physician should review the claims file.  The physician is requested to furnish an opinion as to whether it is at least as likely as not that the Veteran’s death was a result of treatment received at VA?
Specifically, is it at least as likely as not (50 percent or greater probability) that the Veteran’s death was (i) caused or contributed to by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in diagnosing and/or treating the Veteran’s myocardial infarction, or (ii) was due to an event not reasonably foreseeable? 
In determining whether the proximate cause of death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider.
The examiner should address the appellant’s submission of pages from The Merck Manual, 17th Edition, pertaining to coronary artery bypass graft surgery and sepsis in the opinion. 

(Continued on the next page)
A clear rationale for any opinions expressed must be provided.
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Walker, Associate Counsel 

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