Citation Nr: 21005127 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 19-05 796A DATE: January 29, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for vasculitis is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for kidney failure, or for service connection secondary to vasculitis, is remanded. REASONS FOR REMAND The Veteran had active service from June 1961 to February 1963. In January 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran seeks compensation for vasculitis and kidney failure. He testified before the Board of Veterans’ Appeals (Board) in January 2020, when he asserted that his vasculitis was due to VA having prescribed him Levoflaxin while he was on Effexor. He reported that the medical literature he discovered and submitted indicates that mixing those two medications causes vasculitis. He further contends that his kidney failure resulted from the vasculitis, or as the result of VA treatment. Compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if that additional disability were service-connected. A disability is a qualifying additional disability if the disability was not the result of the veteran’s willful misconduct and the disability 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 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; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). To obtain compensation, a claimant must show: (1) a qualifying additional disability, (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran’s informed consent. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1). VA medical opinions were obtained in this case in November and December of 2017. Both opinions, however, seemed to address whether the Veteran’s vasculitis was secondary to the 2014 ear infection for which VA treated the Veteran with Levoflaxin, and did not address the contentions of the Veteran’s 38 U.S.C. § 1151 claims. As the issues here are medically complex, the Board finds that an adequate VA medical opinion is needed to address the Veteran’s contentions before it can adjudicate this appeal. Accordingly, these matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate VA examiner. If an opinion cannot be provided without an examination, one should be provided. The examiner should review the Veteran’s claims file, the additional statements submitted by the Veteran (to include his January 2020 Board testimony), and this Remand, and respond to the following questions: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran has any additional disability, to include vasculitis and kidney disease, as a result of VA medical treatment? (b.) If the examiner finds that there is additional disability of vasculitis and/or kidney disease due to VA treatment in the response to directive (a), above, for each such additional disability, the examiner should answer the following: 1. Was the additional disability at least as likely as not (50 percent or greater) due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? 2. Was the additional disability a reasonably foreseeable outcome of any VA procedure based upon the specific facts and circumstances of this Veteran’s case? (c.) Regardless of whether the examiner finds that the Veteran’s kidney disease is an additional disability resulting from VA treatment in the response to directive (a), above, and if the examiner concludes that the Veteran has vasculitis as an additional disability due to VA medical treatment in the response to directive (a), above, the examiner should also respond to the following: 1. Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s kidney disease was caused by vasculitis which the examiner determined is an additional disability as a result of VA medical treatment in response to directive (a), above? 2. Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s kidney disease was aggravated (i.e., made worse) by vasculitis which the examiner determined is an additional disability as a result of VA medical treatment in response to directive (a) above? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination, if needed, may impact the determination made. 38 C.F.R. (CONTINUED ON NEXT PAGE) § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.