Citation Nr: 1808018 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-21 512 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for a kidney disability, claimed to have resulted from VA prescription drug treatment. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to May 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2011 rating decision, in which the RO denied entitlement to compensation under 38 U.S.C. § 1151 for a kidney disability, claimed to have resulted from VA prescription drug treatment. In August 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued May 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2014. In August 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing has been associated with the claims file. As regards the matter of representation, the Veteran was initially represented by Disabled American Veterans. See September 1997 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative. Later, in June 2011, a VA Form 21-22a, Appointment of Individual as Claimant's Representative, was executed in favor of Attorney Kenneth LaVan. However, in September 2015, Attorney LaVan notified both the Veteran and VA that he was withdrawing his representation of the Veteran. Additionally, during the August 2017 Board hearing, the Veteran confirmed that he has not designated another representative, and that he is now proceeding pro se (unrepresented) in this appeal. See T. at 2. See also 38 C.F.R. § 14.631 (2017). Also, while the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran asserts that he developed renal cell carcinoma as a result of VA-prescribed medication to treat his service-connected hypertension. The provisions of 38 U.S.C.A. § 1151 afford compensation benefits for "qualifying additional disability" in the same manner as if the additional disability were service-connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a "qualifying additional disability," the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment or examination or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012). See also 38 C.F.R. § 3.361 (2017). The Veteran has asserted that after he lost his job, he began treatment at VA, at which time all of his medications were changed. See T. at 5. VA treatment records show that the Veteran was found to have bilateral renal masses in April 2009. Ultimately, in January 2010, the Veteran underwent an open left radical nephrectomy. Records indicate that around that time, the Veteran was taking amiloride, amlodipine, lisinopril, potassium chloride and simvastatin. In conjunction with his section 1151 claim, the Veteran submitted internet-based research regarding the effects of some of his prescribed medication. The internet article pertaining to simvastatin noted that the medication could cause renal dysfunction, myoglobinuria, and acute renal failure secondary to rhabdomyolysis. The internet-based research relating to amiloride notes that renal impairment is possible as a result of usage. Finally, the Veteran testified that he was told by VA treating doctors that there may be a relationship between his kidney cancer and the medications he was prescribed by VA. See T. at 6. The Board finds that a remand to obtain an examination and appropriate medical opinions is warranted in connection with this claim. VA has not afforded the Veteran a VA examination or otherwise obtained any medical opinions, and there is no medical opinion of record that addresses whether the Veteran's kidney cancer as caused by or accelerated beyond its natural progression by any VA prescribed medication; and, if so whether the proximate cause of such disability was (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable. The opinions requested herein will assist the Board in rendering a fully informed decision on the Veteran's claim for compensation under 38 U.S.C. § 1151. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As such. on remand, the AOJ should arrange for the Veteran to undergo VA examination by an appropriate physician. The Veteran is hereby advised that the failure to report for the scheduled examination, without good cause, may well result in denial of his claim). See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. Also pertinent to the claim on appeal, it appears that there may be relevant records outstanding. Therefore, prior to taking action responsive to the above, to ensure that all due process requirements are met, and that the record for all claims is complete, the AOJ should undertake appropriate action to obtain and associate with the electronic claims file (now consisting of electronic records in VBMS and Virtual VA (Legacy Content Manager) files) all outstanding, pertinent records. As regards VA records, records dated from October 2009 through January 2013 are of record. Notably, the earliest record-from October 2009-notes that the appointment was for a follow-up of the Veteran's bilateral renal masses, thereby indicating the existence ofd earlier, outstanding VA treatment records related to the Veteran's kidney disability. Further, it appears that the Veteran has continued to receive treatment following January 2013, the latest record associated with the claims file.. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). To ensure that all outstanding VA records are obtained, the AOJ should obtain from the Atlanta VA Medical Center (VAMC) all pertinent, outstanding records of evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2017) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records and/or employment records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include those from the Atlanta VAMC (and all associated facilities) dated prior to October 2009, and from January 2013 forward. Follow the procedures set forth in 38 C.F.R. § 3.159(c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the matters on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain medical information in connection with his claim under 38 U.S.C. § 1151. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After reviewing the evidence of record, the physician should clearly identify all kidney disability(ies) impairments manifested by the Veteran -to include, but not limited to, kidney cancer and any other kidney disability documented in the record since May 2010 (even if now asymptomatic or resolved). Then, with respect to each such identified disability, the physician should provide an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that disability was caused or accelerated beyond its natural progression by VA prescribed medication(s). If so, the physician should also opine whether the proximate cause of such disability was (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (b) an event not reasonably foreseeable. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran an SSOC that includes clear reasons and bases for all determinations, and afford him an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2017).