Citation Nr: 1328529 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-12 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a kidney disability. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a kidney disability. 3. Entitlement to service connection for Reiter's syndrome. REPRESENTATION Appellant represented by: Eric Gang, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2009 hearing by a Veterans Law Judge sitting at the RO. A transcript of that hearing is associated with the claims file. In February 2013, the Veteran was notified that the Veterans Law Judge who conducted his Board hearing was no longer employed by the Board, and offered him the opportunity to testify at another Board hearing. In a February 2013 letter, the Veteran indicated that he did not wish to have another hearing, and that the Board should proceed with adjudication of his appeal. A March 2009 Board decision denied service connection for a chronic kidney disorder and compensation under the provisions of 38 U.S.C.A. § 1151 for a kidney disability. Pursuant to the parties' agreement in the May 2010 Joint Motion for Remand, the Court of Appeals for Veterans Claims (Court) remanded the appeal to the Board. A letter was sent to the Veteran and his representative on July 14, 2010, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's consideration of the Memorandum Decision's directives. In October 2011, additional argument and evidence was received accompanied by a waiver of review by the Agency of Original Jurisdiction. The Veteran's appeal was remanded by the Board in February 2011. In sum, the RO was directed to obtain outstanding VA treatment records, private treatment records, and Social Security Administration records; schedule the veteran for VA rheumatology and nephrology examinations; adjudicate the Veteran's pending claim for service connection for Reiter's syndrome; and readjudicate the remaining issues on appeal. As review of the claims file reveals substantial compliance with these directives with respect to the Veteran's claim for service connection for a kidney disability, both on a direct service connection basis and on the basis of his claim for benefits under 38 U.S.C.A. § 1151, an additional remand to comply with such directives regarding those issues is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a kidney disability and Reiter's syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO for the appropriate development. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The evidence does not reflect that the Veteran's currently diagnosed kidney disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment, or that there is any additional disability resulting from that treatment constituting an event that was not reasonably foreseeable. CONCLUSION OF LAW The requirements for compensation pursuant to 38 U.S.C.A. § 1151 for a kidney disability have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). January 2006, May 2006, and April 2012 letters satisfied the duty to notify provisions; the May 2006 and April 2012 letters notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Additionally, VA examinations and opinions have been obtained, as have records from the Social Security Administration, in accordance with prior remand directives. As noted above, the Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues and the hearing focused on the elements necessary to substantiate the claim. The Veteran's treatment history was obtained and treatment providers identified. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing, to include during his appeal to the Court. Moreover, an additional hearing was offered to the Veteran in light of the VLJ's retirement, but the Veteran declined an additional hearing. Thus, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Under VA laws and regulations, when a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). In determining whether additional disability exists, VA compares the claimant's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her condition after such care or treatment. 38 C.F.R. § 3.361(b) (2012). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the claimant's additional disability. Merely showing that a claimant received care or treatment and that he or she has an additional disability does not establish cause. 38 C.F.R. § 3.361(c) (1) (2012). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c) (2) (2012). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the claimant's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d) (1) (2012). Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d) (2) (2012). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that compensation is warranted for a kidney disability under the provisions of 38 U.S.C.A. § 1151 due to the actions of VA medical personnel, specifically that the prescribed use of non-steroid anti-inflammatory drugs (NSAIDs) caused or contributed to his kidney disease. The evidence does not establish that the Veteran's kidney disability is directly related to his military service, that it resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing care, or that it was the result of an event not reasonably foreseeable. The Board notes that the Veteran has taken various medications for years, some given to him by VA, some by private physicians, and some apparently taken on his own. There are several medical opinions, both from VA and from the Veteran's private practitioners, which appear to suggest that a kidney disorder resulted from the use of NSAIDs. These include a November 2005 statement from the Veteran's private urologist, Dr. Fineman, which states the Veteran's chronic kidney disease was most likely due to his long-term NSAID use. Similarly, as noted above, in an August 2006 statement, Dr. Fineman reviewed the Veteran's ultrasound and computer tomography (CT) scan and found nephrocalcinosis likely from the NSAID-induced nephropathy. Further, a June 2008 VA record noted that the Veteran had chronic kidney disease, which was likely NSAID related. A February 2009 VA record noted that the Veteran had chronic kidney disease secondary to nephrosclerosis from chronic NSAID use for chronic back pain and arthritis. Additionally, the VA examiner in April 2006 evaluated the record and recognized the effect of NSAIDS on the Veteran's kidneys. He spoke of the glomerular filtration rate (GFR) and the pointed out that with the discontinuation of NSAIDS, that laboratory value improved. The VA examiner went on to discuss creatinine as well and its response to particular drug use. A longitudinal review of the Veteran's levels was discussed and considered. The doctor also observed that there are various other reasons for increased creatinine levels and kidney damage. The April 2006 VA examiner noted that the Veteran was properly and routinely tested and as soon as there was significant deviation from baseline, nephrology was consulted and their recommendations implemented; thus, the Veteran's kidney disease was not due to carelessness, neglect, lack of proper skill or error in judgment. [The Board notes that while the JMR noted this examiner's opinion was insufficient with regard to the claim for service connection for kidney disease, the JMR did not find it insufficient with respect to the opinion provided concerning the claim for compensation under 38 U.S.C.A. § 1151.] An August 2007 VA treatment record assessed chronic nephrolisthiasis and chronic kidney disease stage 3 with a likely prior history of NSAID use, but noted in an addendum that because the Veteran's creatinine level had been stable, and there had been no deterioration of the kidney function in light of recent normal urinalysis, it was difficult to conclude that there is any damage from NSAID use. A November 2007 VA record assessed chronic kidney disease with stable renal function, which was likely due to age related decline in kidney function. The May 2011 VA examiner opined that the Veteran's chronic kidney disease was not the result of carelessness, negligence, or lack of proper skill or judgment on the part of VA. The examiner stated that chronic kidney disease may be caused by multiple problems including age, diabetes, hypertensions, or NSAIDs. In his March 2012 addendum opinion, the May 2011 VA examiner noted that the Veteran had taken NSAIDs intermittently, but all the while his renal function was being monitored by the VA system, and that his serum creatinine remains at 1.17 after 19 years reflects no irreparable damage to his kidneys. Simply put, the examiner found the Veteran was properly monitored, to include through laboratory work, and there was no major change in his renal status as a result of negligence, lack of proper skills, error in judgment or lack of insight. Additionally, in a November 2012 opinion, a VA physician concluded that there was no deviation from standards of care in not referring the Veteran to nephrologists in December 1993 following a creatinine laboratory result of 1.4 according to the MDRD equation, his estimated Glomerular Filtration Rate (eGFR) was 67 milliliters/minute, and a nephrology referral is only recommended when the eGFR drops below 60. Moreover, the Veteran was not in stage 3 chronic kidney disease, but only stage 2, where he has remained since. Thus, the evidence of record contains opinions be both in favor and against a finding that the Veteran's use of NSAIDs resulted in his kidney disease. However, even if the kidney disease resulted from the use of NSAIDs, entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted, as it appears to be a reasonably foreseeable result. Indeed, the April 2006 VA examiner noted that in general, kidney disease can occur from taking large amounts of painkillers, especially drugs containing a combination of caffeine, acetaminophen and aspirin. Combination agents such as these have been associated with an increased risk of kidney disease. Drugs containing acetaminophen alone can also be dangerous to the kidneys although these are less harmful. All of these drugs can damage the inner parts of the kidneys, a condition known as interstitial nephritis. It has been observed that eight to ten tablets or capsules of acetaminophen alone can damage the kidneys over a five-year period. Studies in humans and animals suggest that combination painkillers (as mentioned above) can cause damage in even less time. Non-steroidal anti- inflammatory drugs containing ibuprofen, as well as those containing naproxen sodium, can harm the kidneys, but only if the kidneys are already under stress. Dehydration from overexertion, for example, can stress the kidneys. Similarly, in a November 2010 opinion, Dr. Treiman stated that long-term NSAID use was known to be direct cause of renal disease. The criteria for compensation under 38 U.S.C.A. § 1151 are conjunctive, and require both that hospital care or medical or surgical treatment caused additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Here, the record establishes that the Veteran was prescribed NSAIDS by both private practitioners and VA personnel, and at least in the context of treatment by VA personnel, his renal function was routinely monitored. While some of his treatment providers have opined his kidney condition is related to NSAID use, they have not opined that such disability was the result of result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment, and their opinions support the conclusion that kidney disability is a foreseeable result of NSAID use. On such question, the Board finds the opinions of the VA examiners highly probative. The examiners considered the Veteran's treatment history, the relationship between NSAID use and kidney disease, and the treatment provided by VA, and provided an adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In sum, it is not enough to simply show that taking the medications caused the kidney disability for purposes of entitlement to benefits under 38 U.S.C.A. § 1151; rather, the evidence must also show that the disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment, or that the disability resulting from that treatment constitutes an event that was not reasonably foreseeable. The most probative evidence is against such a finding. As the preponderance of the evidence is against the claim, entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for kidney disability is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a kidney disability is denied. REMAND In pertinent part, the Board's February 2011 remand directed that an opinion be obtained as to whether the Veteran's Reiter's syndrome, a diagnosis also noted as reactive arthritis, was related to the Veteran's military service. In a March 2012 opinion, a VA examiner first concluded that it was at least as likely as not that the Veteran "manifested reactive arthritis since his military separation, manifested by conjunctivitis, iritic, and occasional swelling in his joints . . . [t]he diagnosis of reactive arthritis formerly called Reiter's syndrome is reasonable based on manifestations of eye and joint findings along with the urethritis." However, the examiner then concluded that "[i]f the Veteran manifested reactive arthritis after service, I feel that in my opinion it is not likely that the disorder resulted from in-service treatment for nonspecific urethritis and urethral stone; he had this syndrome prior to this and it would not be related to any treatment for any nonspecific urethritis and urethral stones in the service." Further, in an October 2012 addendum, the VA examiner concluded that the Veteran's Reiter's syndrome (reactive arthritis) was not a result of or related to in- service treatment for non-specific urethritis and urethral stones. He was treated for nonspecific urethritis in 1968 during service, but there was no mention or documentation of reactive arthritis at that time. The Board finds such opinion somewhat confusing and it does not address whether the in-service symptoms manifested that diagnosis even if the diagnosis was not contemporaneously made. Ultimately, the Board finds that remand is required so that a clarification can be obtained. With respect to the claim for service connection for kidney disability, the Board notes that the Veteran has contended that the kidney disability is secondary to NSAIDS taken for Reiter's syndrome. As such, this issue is inextricably intertwined with the issue being remanded. Accordingly, the issue of entitlement to service connection for Reiter's syndrome is REMANDED for the following actions: 1. Forward the Veteran's claims file to a VA rheumatologist. If the specialist determines that an additional examination is necessary, one should be scheduled. Following review of the claims file and any examination deemed necessary, the specialist should respond to the following: a. Is it more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the symptoms of nonspecific urethritis, ureteral stone, or other in-service complaint was actually an early manifestation of Reiter's syndrome (reactive arthritis), even though no diagnosis of that condition was noted during service? Please explain the reasoning for the opinions provided. b. If the specialist concludes that the Veteran did not have manifestations of Reiter's syndrome (reactive arthritis) during service, then he/she should opine whether it is more likely, less likely, or at least as likely as not that the Veteran's post service Reiter's syndrome (reactive arthritis) was etiologically related to events during service, to include the urethritis and ureteral stone. In rendering this opinion, the specialist should comment on the April 2006 examiner's statement that nonspecific urethritis was a sexually transmitted infection that led to complications such as Reiter's syndrome. Please explain the reasoning for the opinions provided. 2. After undertaking the development above and any additional development deemed necessary, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs