Citation Nr: 18148011 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-11 493A DATE: November 6, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for chronic renal failure is denied. FINDING OF FACT Chronic renal failure is not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable treatment for hypertension, or any event not reasonably foreseen. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for chronic renal failure, have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to December 1980. Entitlement to compensation under 38 U.S.C. 1151 for chronic renal failure Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if that 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 under any law administered by VA, and the proximate cause of the disability was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a). To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). Additional disability caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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 additional disability. 38 C.F.R. § 3.361(c). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, representative’s informed consent. 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. 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). The Veteran asserts that he has additional disability due to improper treatment for hypertension, which he asserts caused chronic renal failure. September 2007 VA medical records show a follow-up for a history of hypertension which had been well controlled. June 2008 VA medical records show a follow-up noting history of hypertension which was well-controlled on medications. In November 2008, a new VA formulary medication profile was developed. The Veteran verbalized his understanding. In December 2008, VA medical records noted that the Veteran’s hypertension was uncontrolled. New medications were being substituted. In January 2009, VA medical records show that the Veteran’s hypertension was still uncontrolled. One of the Veteran’s hypertension medications was increased. In February 2009, poorly controlled hypertension was noted. In July 2009, VA medical records indicated that the Veteran had difficulty controlling hypertension, and that he was co-managed by a private nephrologist and VA providers. The record noted that with the most recent increase in hypertension medication, and a multi-medicine regimen, blood pressure had been controlled. August 2009 VA medical records indicate labs showed proteinuria. The Veteran was asked about a referral to a VA nephrologist. He stated that he already took copies of the labs to a private nephrologist for review. In September 2009, the Veteran was assessed by VA with chronic kidney disease secondary to hypertension. The records noted that lab work ruled out any role of Hepatitis C, and that the glomerular filtration rate was stable. VA decided to discontinue one of the Veteran’s medications for hypertension. In March 2010, VA medical records indicate the Veteran was on a three-medicine regimen for hypertension. The record noted to refer the Veteran to a VA hypertension nephrologist clinic if unimproved, as the Veteran no longer wanted to see a private nephrologist. April 2010 VA medical records indicate that the Veteran’s hypertension was improved on the new several medications. October 2010 VA medical records noted a history of hypertension, and renal lesion. The record also noted non-compliance issues. The Veteran reported that he had a kidney biopsy done recently, but forgot to bring the paperwork with him. He reported that his blood pressure was so high, he was taken off all medications and started on a new set. The examiner noted that the Veteran had gone back and forth between a private nephrologist and VA providers. April 2011 VA medical records show lab results indicated creatinine levels increased slightly. VA enclosed a copy of the lab results for the Veteran’s private nephrologist to review. June 2011 VA medical records show that lab work found rapidly decreasing kidney function. The VA doctor recommended discontinuing two hypertension medications the Veteran was taking, as they could decrease kidney function with renal artery stenosis. VA told the Veteran he would need a follow-up at VA if he was not being seen by a private nephrologist. In a physician progress note, the Veteran’s VA doctor noted that medication adjustment was discussed, and that they probably needed to exclude renal artery stenosis in the future. July 2011 ultrasound of the kidney was unremarkable, but suggested evidence of renal disease from hypertension. In September 2011, the Veteran submitted his claim for benefits under 38 U.S.C. § 1151 for chronic renal failure due to improper treatment for hypertension by VA. VA medical records noted a history of noncompliance with VA, and that the Veteran had been privately managed for nephrology. VA obtained an expert medical opinion regarding the Veteran’s claim in January 2012. A VA physiatrist reviewed the available records, including the Veteran’s VA medical records. The examiner noted that the Veteran was initially seen at VA medical centers in 2002, and that chronic hypertension and chronic renal insufficiency was treated by both private physicians and VA providers. Regarding the Veteran’s treatment for hypertension at VA, the examiner opined that VA records showed the Veteran’s blood pressure was appropriately managed by VA providers. The examiner opined that the chronic renal failure was not caused by or the result of VA hospital care, medical or surgical treatment, or examination furnished; nor was it due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. The Board assigns great probative weight to the competent, probative, and comprehensive findings of the January 2012 VA examiner. The opinion was made following a thorough review of the claims file and medical history. Notably, the VA examiner concluded that there chronic renal failure was not due to carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in furnishing medical treatment to the Veteran for hypertension. The Board acknowledges that the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that the Veteran attributes his chronic renal failure to the administration of treatment by VA for hypertension, such a determination involves complex medical findings beyond the Veteran’s lay competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran’s statements in that regard are of less probative value than the findings of the January 2012 VA examiner. The Veteran has not submitted any competent opinion from a medical professional that relates any additional kidney disability to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. The Board finds that the preponderance of the evidence weighs against the claim of entitlement to compensation under 38 U.S.C. § 1151 for chronic renal failure. The competent and probative evidence of record does not support a finding that any additional disability was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. Accordingly, the criteria for VA compensation benefits under 38 U.S.C. § 1151 are not met, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel