Citation Nr: 21004457
Decision Date: 01/07/21	Archive Date: 01/27/21

DOCKET NO. 15-25 771
DATE: January 7, 2021

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for a kidney disability, due to pain medication, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1965 to February 1967.  He received the Good Conduct Medal and National Defense Service Medal.

Although the Board regrets the additional delay, a remand is necessary.  In July 2019, the Veteran’s claim was remanded for an independent medical opinion that addresses whether the Veteran experienced any additional disability, to include chronic kidney disease and renal failure, following a 2009 instruction to take pain medication for his knee disability. See 38 C.F.R. § 3.328 (2019).  In January 2020, the Agency of Original Jurisdiction (AOJ) obtained an opinion from a VA clinician.  The claim was again remanded in September 2020 for an independent medical opinion.  In November 2020, the AOJ obtained another opinion from a VA clinician.  As the Board’s remand instructed the AOJ to obtain an independent medical opinion pursuant to 38 U.S.C. § 5109 (2012), the Board finds that there has not been substantial compliance with the September 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Board remand confers on a claimant the right to compliance with the remand orders).  Therefore, the claim is remanded for an independent medical opinion that addresses whether the Veteran experienced any additional disability as a result of treatment he received from VA. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328 (2019).

The matter is REMANDED for the following action:

Take the appropriate steps to obtain an advisory opinion from an independent medical expert pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328 (2019) that is responsive to the following inquiries:

(a) Is there additional disability to the Veteran’s kidneys following the 2009 instruction to take pain medication for the Veteran’s knee pain?  Any recommended testing needed to confirm the Veteran’s diagnosis should be undertaken and all current residuals should be noted.  This determination should be made by comparing the Veteran’s condition immediately before the treatment to the Veteran’s condition after.  

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(b) For any additional disability identified in response to the above, was the additional disability proximately caused by 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?

(c) For any additional disability identified in response to inquiry (a), was the additional disability caused by an event not reasonably foreseeable?  Specifically, the reviewing specialist is asked to state whether the additional disability was the type of risk that a reasonable health care provider would not have anticipated as a result of the treatment.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	W.V. Walker, Associate Counsel

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.