Citation Nr: 1422738 Decision Date: 05/20/14 Archive Date: 05/29/14 DOCKET NO. 10-48 505 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for a kidney disorder. 2. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for a liver disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to July 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from an July 2010 decision of a Department of Veterans Affairs Regional Office (RO). Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his electronic claims file. FINDINGS OF FACT 1. The Veteran does not have additional disability, including a kidney disorder, that was proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. 2. The Veteran does not have additional disability, including a liver disorder, that was proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. CONCLUSIONS OF LAW 1. The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for a kidney disorder are not met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.358, 3.361(b), 3.800 (2013). 2. The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for a liver disorder are not met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.358, 3.361(b), 3.800 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a December 2009 letter, the RO notified the Veteran of the legal criteria governing claims for compensation benefits under 38 U.S.C.A. § 1151. This document served to provide notice of the information and evidence needed to substantiate the claims. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the December 2009 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each of the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The claims folder contains copies of VA outpatient treatment records, including records dated in 2001; and the Veteran was afforded a VA examination in connection with the claims on appeal, a report of which is of record. The opinions expressed therein are predicated on a review of the history and consideration of the Veteran's complaints and symptoms. The Veteran has not reported that he received private treatment relevant to these claims. II. Analysis Under current provisions of 38 U.S.C.A. § 1151, compensation shall be awarded for a Veteran's qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, and the proximate cause of the disability is carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, upon which the claim is based to the Veteran's condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b); see also 38 C.F.R. § 3.358(b)(1). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1); see also 38 C.F.R. § 3.358(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability (as explained in paragraph (c) of this section); and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The Veteran contends that he incurred additional disability, as a result of negligence in VA's medical treatment. He contends that he has chronic kidney disease and chronic liver disease as a result of taking medication-i.e., Celebrex-prescribed by VA. VA treatment records show that the Veteran first vested for VA health care in May 2001. At that time he reported taken 200 milligrams of Celebrex. In June 2001, a plan to change the Veteran's Celebrex to Etodalac was noted, and that use sparingly was recommended because the Veteran's creatinine levels showed slight elevation on last visit. VA treatment records, dated from 2004 to 2008, show a past medical history of renal failure and chronic kidney failure. There is no documentation of any liver disease. Based on the contentions raised in the record, the Veteran underwent a VA examination in June 2010. The examiner reviewed the Veteran's medical history, and noted that there were no treatment records following active service, except for those from the Dallas VA facility. The Veteran's vesting examination in May 2001 indicated that he already had hypertension and already had chronic kidney failure. The Veteran also indicated that he was not on any medication prior to coming to VA, and that he had had no medical care for many years. Records show that the Veteran was started on medications for hypertension. Laboratory testing also showed a creatinine of 1.5, which was slightly elevated. Liver function tests were normal. The examiner found that there was no indication that the Veteran has ever had any type of liver problem while he was on Celebrex or afterwards. The June 2010 examiner indicated that the Veteran was on Celebrex from May 2001 to December 2001, and then the Celebrex was discontinued. He continued to have slightly elevated creatinine at 1.7 with normal blood urea nitrogen levels. See January 2010 VA laboratory testing results. Repeat urinalysis showed either no protein or trace protein for several years. There was no indication of any worsening of his kidney disease, and he had no treatment for renal disease. The examiner noted that the Veteran's current pain medicine was hydrocodone with acetaminophen, which he took every six hours and which significantly helped his pain. The examiner noted that acetaminophen in high doses is well known to cause liver problems. Diagnoses included no history of liver disease; and stable, mild renal insufficiency. The June 2010 examiner opined that hypertension and renal insufficiency pre-existed the Veteran's arrival at VA for medical care; and opined that the Celebrex did not cause any permanent worsening of the kidney condition. In support of the opinion, the June 2010 examiner indicated that the Veteran's kidney condition has been stable since his first VA visit, and has not required any specific intervention. Specifically, the June 2010 examiner found that any adverse effect from Celebrex would have been temporary and reversed within a few weeks of its discontinuance. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, a VA examiner reviewed the claims file and concluded that there was no current diagnosis of liver disease, and no evidence of any permanent worsening of the Veteran's kidney condition as a result of VA treatment. The Board also notes that there are no findings of negligence or carelessness, or lack of proper skills or judgment in the medical treatment provided the Veteran beginning in May 2001. Moreover, the examiner indicated that any adverse effect from Celebrex would have been temporary. The Board finds the June 2010 VA examiner's opinion is factually accurate, fully articulated, and contains sound reasoning; and it is afforded significant probative value. Even acknowledging that the Veteran experienced kidney problems when he first visited the VA for care in May 2001, neither the Veteran nor his representative presented or alluded to the existence of any medical opinion (i.e., one that would support the Veteran's assertions as to whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider), despite specifically being asked or invited to present or identify such evidence in the December 2009 letter. The Board recognizes that the Veteran is competent to report first-hand experiences of kidney problems when he first visited the VA in May 2001. However, as a lay person, he is not shown to have the medical expertise to offer an opinion as to the underlying etiology of any current kidney disease or claimed liver disease, to include the extent to which any action or treatment by VA health care providers contributed to his medical problems. Therefore, the Board ultimately places far more weight on the medical opinions discussed above, which considered the nature and circumstances of his medical treatment at a VA facility beginning in May 2001, but concluded that the evidence reflects no current liver disease and no permanent worsening of his kidney condition. In short, the most competent and probative evidence weighs against a finding of any additional disability related to improper care or an unforeseen event related to VA medical treatment beginning in May 2001. Accordingly, the Veteran's claims are denied. ORDER The claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for a kidney disorder is denied. The claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for a liver disorder is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs