Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151 is remanded.
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Citation Nr: A20013463 Decision Date: 08/24/20 Archive Date: 08/24/20 DOCKET NO. 200326-79028 DATE: August 24, 2020 REMANDED Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran had active service from May 1953 to April 1955. The Veteran died in September 2011. The appellant is the Veteran’s surviving spouse. The appellant testified at a videoconference hearing in October 2015. The case was remanded following the video hearing. In March 2020, the Appellant submitted a VA Form 10182 and opted into the Evidence Docket. The appeal has been withdrawn from the legacy system. 1. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1151 is remanded. In statements and testimony in support of her claim, the appellant has contended that the Veteran received negligent medical care after surgery for colon cancer at the VA Medical Center in Minneapolis in April 2010. She alleges that the Veteran had numerous catheterizations, which led to the development of sepsis. She further alleges that the Veteran should have had a NG tube after his surgery. She alleges that he received a liquid diet, which resulted in distention of his abdomen. She asserts that he had nausea and pressure and should have had a NG tube placed. The appellant asserts that the caregivers did not recognize the failure of early feeding after the Veteran’s operation. The appellant alleges that the VA treatment providers failed to recognize sepsis and an ileus which caused his cancer to progress more rapidly. The Board previously remanded this matter to obtain a medical opinion. The Board requested a new medical opinion considering the three conflicting medical opinions already of record. The December 2019 examiner gave a negative nexus opinion for the questions posed. The examiner did not provide an opinion and rationale based on the examiner’s review of the medical records. The rationale consisted of quoted sections of the medical opinions from the prior VA examinations without additional discussion by the examiner. Thus, the examiner’s rationale for the opinion is unclear. As the examiner did not provide a medical opinion with a clear rationale, a remand is necessary to obtain a new medical opinion. The matters are REMANDED for the following action: 1. Obtain a new medical opinion for the claim for compensation under 38 U.S.C. § 1151 for the cause of the Veteran’s death. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran’s death was hastened or caused by a failure to provide adequate treatment for his colon cancer before and after the 2010 colectomy to the degree that would have been provided by a physician exercising the degree of skill and care ordinarily required. The examiner must provide a clear rationale for all opinions expressed. The examiner is asked to review the transcript of the October 2015 Board hearing. The examiner must consider the contentions set forth during the Board hearing and in her written statements. The examiner must also address the conflicting opinions of record, including: • The opinion from Dr. Fortier dated in December 2012 • The opinion from Dr. Bash dated in July 2013 • The VA medical opinion dated in September 2013 • The VA medical opinion dated in August 2014 The examiner must address the following contentions advanced by the appellant: • The examiner must specifically discuss the appellant’s contention that catheterizations caused sepsis. • The examiner must also address her contention that the Veteran should have had a NG tube after his April 2010 surgery. • The examiner must address the appellant’s contention that the care providers failed to recognize a failure of early feeding. • The examiner must address the appellant’s contention that the VA treatment providers failed to recognize sepsis and an ileus, causing the Veteran’s cancer to progress more rapidly. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.