Citation Nr: 21005288 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-07 162 DATE: February 1, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for end-stage kidney disease is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to June 1976. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a March 2015 rating decision. A hearing was held by the undersigned Veterans Law Judge in October 2019; a transcript is in the claims file. The claim was previously remanded by the Board in a December 2019 decision. Although the Board regrets the additional delay, the claim must again be remanded for reasons explained below. Entitlement to compensation under 38 U.S.C. 1151 for end-stage kidney disease The Veteran makes several contentions of negligence or fault on the part of his treating VA providers. First, he contends that his primary care provider ignored multiple referrals for consultation in the nephrology department and failed to provide him with necessary care as a chronic kidney disease (CKD) patient that would have slowed, or prevented, his progression to end-stage kidney disease (ESKD). Second, he was inappropriately taken off his ACE inhibitor, Enalapril, medication in 2012, which served to protect his renal system while simultaneously taking Allopurinol, a medication that is detrimental to the renal system. Third, he was prescribed the full dosage (300 mg daily) of Allopurinol for approximately two years, without an ACE inhibitor, despite that the current recommendation is to limit the dosage in CKD patients. As a result of all the above, he presented to the Emergency Department in February 2014 with acute on chronic kidney injury and now has ESKD and is on dialysis. Notably, upon his February 2014 admission, the prescription for Allopurinol was immediately stopped. Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. 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 the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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). 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 or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 U.S.C. § 1151 (a)(1). To supplement his claim, the Veteran submitted lay statements, medical records, and multiple articles, to include a guideline from VA and the Department of Defense (DoD) which stated “early intervention and management is important to stabilize or at least slow down progressive kidney damage, which worsens the prognosis of patients with chronic kidney disease.” The guideline includes recommendations on treating a CKD patient, which includes consultation with nephrology, and prescribing an ACE inhibitor. Additionally, the guideline recommends that CKD patients should avoid or have limited prescriptions to nephrotoxins, to include Allopurinol. There have been two VA opinions obtained regarding this claim. In its December 2019 decision, the Board deemed the October 2014 opinion inadequate and a new one was obtained in March 2020. The March 2020 examiner opined it was less likely than not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical staff caused an additional disability of ESKD. She reasoned that the VA medical staff was aware of and understood the clinical implications of the Veteran’s rising creatinine when routine labs on February 10, 2014 demonstrated a decrease in his prior baseline. The medical evidence supports there was no acute deterioration in his condition while awaiting the expedited nephrology evaluation following the labs. Additionally, she stated there was “no medical evidence of record to support a diagnosis of acute kidney injury related to the medications as prescribed (see UA results above).” The Board finds this opinion inadequate. First, regarding reviewed medical records, the examiner only specifically noted the Veteran’s September 2011 creatinine level, the December 2011 diagnosis of CKD, and records from February 2014, at which time the Veteran was diagnosed with ESKD. There is no mention of the 2011 nephrology consultation requests or the appropriateness of his prescribed medications. It is unclear to the Board how the UA results provided in the report resolve the inquiry as suggested by the examiner. Second, the examiner does not appear to have reviewed the Veteran’s lay statements or submitted articles, to include the VA/DoD guidelines. Thus, remand is warranted for a new opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Obtain an opinion on whether it is at least as likely as not (i.e. 50 percent or greater probability) that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical staff caused an additional disability of end stage kidney disease. An opinion must be rendered for each of the Veteran’s contentions of negligence outlined in this decision. The examiner is reminded that causation is established when VA’s failure to timely diagnose and properly treat a disease or injury proximately caused the continuance or natural progress of the disease or injury. The examiner must review all evidence of record – to include the medical records, articles submitted by the Veteran, and the Veteran’s own testimony. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.