Citation Nr: 21068052
Decision Date: 11/08/21	Archive Date: 11/08/21

DOCKET NO. 16-41 160
DATE: November 8, 2021

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for chronic kidney disease is remanded.

Entitlement to compensation under 38 U.S.C. § 1151 for congestive heart failure is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from August 1955 to July 1958. 

The Veteran died in October 2017.  The Appellant is the Veteran's surviving spouse, who was properly substituted as the claimant to continue the Veteran's pending claims on appeal to completion.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision.  In a July 2020 decision, the Board denied the claims for compensation for chronic kidney disease and congestive heart failure under 38 U.S.C. § 1151.  The Appellant timely appealed to the United States Court of Appeals for Veterans Claims (Court), and in a June 2021, the Court issued an Order vacating and remanding the claims to the Board pursuant to a Joint Motion for Remand.

As part of the Joint Motion, the parties agreed that the record does not contain a signed consent for the Veteran's December 2006 procedure which is the basis for the claims herein.  While the Board previously remanded the claim to obtain consent records, only one attempt was made to obtain the pertinent medical records.  In light of the claims being vacated and remanded by the Court, the Board finds remand is necessary to make additional attempts to obtain the consent.

The matters are REMANDED for the following action:

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1. Make all reasonable efforts to obtain any informed-consent form(s) or other medical records concerning the BCG procedure performed at the Reno, Nevada VA Medical Center (VAMC) in December 2006.  The RO should make more than one attempt to obtain the records.  If the RO is unable to obtain the relevant records, a memo should be associated with the file which documents all the attempts made by the RO in trying to obtain the records, and why it is believed further attempts would be futile.

2. Once the records are associated with the file, obtain addendum opinions regarding whether the BCG procedure done in December 2006 resulted in additional kidney and heart disabilities and whether the proximate cause of the disabilities was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment; or that the proximate cause of additional disabilities was an event which was not reasonably foreseeable.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Ahmad

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.