Citation Nr: 21032389 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-12 120 DATE: May 26, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for renal failure is remanded. REASONS FOR REMAND In July 2011 the Veteran raised the issue of entitlement to Department of Veterans Affairs (VA) benefits for renal failure clamed as due to improper care and medication overdose. In a June 2013 rating decision, a VA Regional Office (RO) denied entitlement to compensation under 38 U.S.C. § 1151 for renal failure. In October 2013 the Veteran submitted a notice of disagreement with that denial, initiating an appeal to the Board of Veterans' Appeals (Board). In October 2016 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge to address a different claim, for compensation under 38 U.S.C. § 1151 for residuals of amputation of the right leg. In that hearing the Veteran also discussed his contentions regarding fault in VA treatment that led to renal failure. In March 2021 the Board remanded the issue of entitlement to compensation under 38 U.S.C. § 1151 for renal failure to the RO for additional action. The Board's actions in March 2021 also included denial of entitlement to compensation under 38 U.S.C. § 1151 for right leg below the knee amputation. That decision resolved the appeal to the Board as to that issue. 1. Compensation under 38 U.S.C. § 1151 for renal failure The Board is remanding the claim for VA medical opinion. The Veteran contends that compensation under 38 U.S.C. § 1151 is warranted because faulty VA medical treatment caused him to have renal failure. VA pays disability compensation to veterans with disabilities that are service-connected. 38 U.S.C. §§ 1110, 1131. VA awards compensation benefits under 38 U.S.C. § 1151 for a qualifying additional disability in the same manner as if the additional disability were service connected. A disability is a qualifying additional disability if: (1) it was not the result of the veteran's willful misconduct, (2) it was caused by hospital care, medical or surgical treatment, or examination furnished by VA, and (3) it was proximately caused by (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. Regarding the second element, merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Id.; 38 C.F.R. § 3.361(c)(2). Regarding the third element, the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment or similar instances of fault on VA's part proximately caused a veteran's additional disability or death, the evidence must show that such care or treatment caused a veteran's additional disability or death, and either (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, medical or surgical treatment, or examination without a veteran's or, in appropriate cases, a veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Finally, in establishing whether the proximate cause of a veteran's additional disability or death was not reasonably foreseeable, the event need not be completely unforeseeable or unimaginable. Instead, it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding any point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 53-56 (1990). In March 2021 the Board remanded the claim for the RO to issue a statement of the case (SOC). In March 2021 the RO issued a supplemental statement of the case (SSOC) regarding the issue. The SSOC contains discussion of the requirements for SOCs and SSOCs. The SSOC does not contain discussion of Section 1151, nor application of that Section to the Veteran's claim. The Veteran asserts that VA failed to monitor his vancomycin levels during his home IV treatment in 2008. He contends that the monitoring failure led to excessive levels of vancomycin. He contends that the high vancomycin levels caused kidney failure. The private treating physician Dr. B. has indicated that the Veteran's kidney failure may be related to a reaction to vancomycin. However, the claims file does not contain a clear medical finding or opinion as to whether the Veteran has additional disability due to acute renal failure treated in 2008. The file does not contain medical finding or opinion as to whether any such additional disability was caused by VA treatment, including the claimed lapses in reported lab test results. The file does not contain any medical finding or opinion as to whether VA medical facility actions and inactions constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or whether any additional disability resulted from an event that was not reasonably foreseeable. The Board is remanding the claim for an appropriate clinician to review the file and provide opinion addressing those questions. The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate VA physician for review with respect to Veteran's claim for compensation for renal failure claimed as attributable to negligence or similar fault in VA medical treatment. Ask the reviewer to review the claims file. While the reviewer is to fully review the file, ask to reviewer to note that: the Veteran asserts that in 2008 the VA outpatient clinic in Harlingen, Texas failed to obtain sufficient laboratory test results to monitor his Veteran's vancomycin levels during at home intravenous (IV) treatment. Records of private treatment in 2008 note acute renal failure. Subsequent private and VA treatment records note kidney issues. Ask the reviewer to provide opinions addressing the following questions: A. Does the acute renal failure noted in treatment in 2008 and subsequent kidney findings at least as likely as not constitute additional disability beyond the normal progression of the Veteran's kidney conditions in 2007? B. Was there at least as likely as not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA's monitoring of the Veteran's vancomycin levels during at home IV vancomycin treatment in 2008? C. Did any inadequacy in the monitoring of the Veteran's vancomycin levels at least as likely as not cause kidney problems? D. Was it reasonably foreseeable, or was it not reasonably foreseeable, that the Veteran's IV vancomycin treatment in 2008 was followed by kidney problems? Ask the reviewer to explain each opinion. 2. Then review the expanded claims file and review the remanded claim. If the claim remains denied, issue a supplemental statement of the case which contains all appropriate laws and regulations and contains an analysis of the facts in this case, and afford the Veteran and his representative an opportunity to respond. Then return the case to the Board for appellate review, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.