Citation Nr: 22020105 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 14-39 536 DATE: April 4, 2022 ORDER Compensation under 38 U.S.C. § 1151 for chronic kidney disease is denied. FINDING OF FACT The Veteran's chronic kidney disease was a reasonably foreseeable risk of the use of Vancomycin when the Veteran was treated at a Department of Veterans Affairs (VA) facility, and it did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of failure on the part of the VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for chronic kidney disease have not been met. 38 U.S.C. § § 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to September 1972. On appeal is a July 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO) that denied compensation under 38 U.S.C. § 1151 for chronic kidney disease. In November 2017, a Board of Veterans' Appeals (Board) hearing was held via videoconference before the undersigned Veterans Law Judge and a transcript of that proceeding is associated with the Veteran's claims file. Following the Board hearing, in a March 2018 decision, the Board denied compensation under 38 U.S.C. § 1151 for chronic kidney disease. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Veteran's representative and the VA General Counsel filed a joint motion for partial remand (JMPR) requesting the Court vacate and remand the parts of the March 2018 Board decision that denied entitlement to compensation under 38 U.S.C. § 1151 for chronic kidney disease. The parties agreed that the Board erred by not addressing a reasonably raised theory for compensation under 38 U.S.C. § 1151 for chronic kidney disease. The Court granted the JMPR in January 2019, and the matter was returned to the Board for adjudication. In August 2019 and June 2021, the Board remanded these issues for additional development. Following the requested development, the issue of entitlement to compensation under 38 U.S.C. § 1151 for chronic kidney disease has returned to the Board and is addressed in the decision below. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA medical opinions obtained in February 2020 and November 2021. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to compensation under 38 U.S.C. § 1151 for chronic kidney disease. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 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). In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). 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 C.F.R. § 3.361(d). Here, the Veteran seeks compensation under 38 U.S.C. § 1151 for chronic kidney disease. More specifically, the Veteran contends that his current kidney disease was incurred as a result of VA treatment in November 2014 when he was treated with Vancomycin for right knee swelling at the VA hospital in Bay Pines. He contends, in part, that the initial diagnosis of "septic knee" assigned during this hospitalization was incorrect and led to treatment with medication that caused his kidney disease. He further asserts that VA was negligent in not transferring his files to the Bay Pines Hospital. He stated that if they had, the physicians would have seen that he was taking niacin, which should not have been combined with Vancomycin due to potential kidney damage. The Veteran indicated that he did not find that the actual VA care providers were negligent in administering Vancomycin on November 14, 2014, when he had elevated white blood cell count and swelling in the right knee. Rather, he alleges negligence with respect to the delayed transfer in his medical files. In other words, there is no indication that any VA treatment provided was without the Veteran's consent. Upon review of the medical and lay evidence in this case, the Board finds that the Veteran's chronic kidney disease was a reasonably foreseeable risk of the use of Vancomycin, and that it did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of failure on the part of the VA. The Veteran's VA treatment records from the San Antonio VAMC are associated with the file. VA hospital records dated November 14, 2014, show that the Veteran was admitted for pain and swelling of the right knee without a recent trauma. The physician injected a pain reliever and drained the fluid from the knee. He was then started on an antibiotic, Vancomycin, for a suspected infection as his white blood cell count was elevated. On November 15, 2014, his uric acid levels were noted to be 9.1. As such, his Vancomycin maintenance dose was decreased and monitored due to increasing serum/creatinine and risk of nephrotoxicity due to "low albumin, diabetes, Zosyn, high BMI." On November 17, 2014, the doctor indicated that the Veteran most likely had pseudogout as there was faint chondrocalcinosis on a right knee x-ray. He recommended stopping the antibiotics and said not to give the Veteran Indocin because of renal insufficiency. He was assessed with an acute kidney injury and suspected acute tubular necrosis due to necessary antibiotics. He was also assessed with chronic kidney disease, stage 3, from suspected diabetic nephropathy, present since 2013. Lab results from that day indicated that the white blood cell count had stabilized and that the Veteran's renal function was compromised acutely. In a November 26, 2014, follow-up rheumatology outpatient note, it was indicated that the Veteran's uric acid level was at an elevated level of 9.1. The doctor stated that the Veteran was on niacin which "could definitely contribute to this." Additionally, the doctor noted that the Veteran should lose weight and his diabetes could also be contributing to the elevated uric acid level. On December 1, 2014, he was evaluated by the nephrology department for a follow-up of his acute kidney injury on top of chronic kidney disease. The doctor stated that the Veteran had mild chronic kidney disease with a previous baseline creatinine level in the 1.3-1.5 range based on a review of the Veteran's remote data. The Veteran's creatinine on admission to the hospital was initially 1.6 but then increased to a peak of 3.2 and then decreased to about 2.2 by discharge on November 20, 2014. In a February 2015 treatment note, the doctor noted that the Veteran was found to have an acute renal insufficiency while he was in the hospital that was "more than likely due to the antibiotics." However, the doctor noted that the Veteran's creatinine level was coming down from a high of 3.2 during his hospital stay to 1.7 at discharge and now at 1.59. In June 2016, a VA medical opinion was obtained. The examiner opined that it is at least as likely as not that the claimed kidney disability was caused by or became worse as a result of the VA treatment at issue. The examiner also opined that it is less likely as not that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; or that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. As rationale, the examiner observed that the antibiotic treatment the Veteran sustained had to be initially started with high suspicion of infection but was discontinued as soon as it was appropriate. The examiner also noted that the Veteran has several comorbidities, such as diabetes and hypertension, to explain the renal failure and opined that the prescribed antibiotics may have contributed to the acute kidney problem but should have resolved as soon as the medication was stopped. Finally, the examiner noted that immediate nephrology consults and proper follow up was done appropriately, as documented in the Veteran's treatment records. The Veteran submitted treatment records dated in October 2016 wherein Dr. V.C. indicated that Vancomycin-induced acute kidney injury could not be entirely ruled out given the creatinine trend. Dr. M.L. also noted in October 2016 that the Veteran's chronic kidney disease progressed rapidly after treatment of his gout. In an August 2017 statement, the Veteran's representative argued that Congressional correspondence detailing the termination of a VHA employee involved in the Veteran's treatment is evidence of negligence on the part of VA. He essentially argues that if the Veteran's records had been transferred, the Veteran would not have been started on Vancomycin for his knee swelling. In November 2017, the Veteran submitted a statement from Dr. V.C. indicating that it is more likely than not that the administration of Vancomycin in November 2014 contributed to his kidney failure. At the November 2017 Board hearing in this matter, the Veteran testified that he believed the Vancomycin he was prescribed during his VA hospitalization contributed to his kidney disorder. Specifically, he testified that he was initially treated with Vancomycin for a misdiagnosis of "septic knee." As noted above, in January 2019, the parties filed a JMPR stating the Board erred by not addressing a reasonably raised theory that he was misdiagnosed with a "septic knee" at the VA hospital, which led to treatment with Vancomycin and his kidney injury. As a result, the Board remanded for a medical opinion to address the Veteran's contentions. In January 2020, a new medical opinion was obtained. The examiner opined that it is as least as likely as not that the claimed kidney disease was caused or became worse as a result of the VA treatment at issue. As rationale, the examiner stated the Veteran was treated with Vancomycin, which is "known to cause nephrotoxicity," for what was initially diagnosed as a septic knee. However, the examiner also opined that it is less likely than not that the Veteran's kidney disease resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA attending personnel. As rationale, the examiner stated the "Veteran had a septic knee that needed aggressive antibiotic treatment." The examiner noted that the treatment provider's decision to use certain antibiotics, such as Vancomycin, that have known toxicity is a judgement call that includes weighing benefits and risks. The examiner observed that the treatment provider in question placed both pharmacy and nephrology consults regarding Vancomycin and nephrotoxicity, which the examiner stated indicated that the attending personnel were aware of the medication's side effects and proceeded with caution. The examiner also opined that while it is generally less than 50 percent probable that Vancomycin treatment would result in nephrotoxicity, it is as least as likely as not that the Veteran's kidney disease resulted from an incident that could have reasonably been foreseen by a reasonable healthcare provider. As rationale, the examiner stated Vancomycin is known to cause nephrotoxicity, which is an incidence that could have reasonably been foreseen by a reasonable healthcare provider. Lastly, the examiner opined that it is less likely than not that there was failure on the part of the VA to timely diagnose or properly treat the claimed disease or disability, or that the VA allowed the disease or disability to progress. Because the February 2020 VA examiner did not specifically address the Veteran's theory that he was initially misdiagnosed with a "septic knee," leading to the incorrect treatment with Vancomycin that caused his kidney disease, the Board again remanded the claim for an addendum medical opinion, which was obtained in November 2021. At that time, the examiner acknowledged that in 2014 the Veteran was treated for "a presumed septic arthritis" with Vancomycin, which the examiner acknowledged caused additional disability in the form of kidney damage. However, the examiner concluded that the VA treatment providers' actions were not careless, negligent, or lacking in proper skill, and that there were no errors in judgment or similar instance of fault. By way of rationale, the examiner explained that renal problems are a "known risk" of Vancomycin treatment and that "appropriate measures were taken to prevent the Veteran's renal failure," but that these measures were ultimately unsuccessful. The examiner further explained that it was reasonable for the VA treatment providers to promptly begin Vancomycin treatment for the Veteran's presenting symptoms, specifically given the risk of MRSA septic arthritis, rather than waiting for test results before beginning treatment. The examiner stated that the risk of MRSA, and the difficulty treating it, was sufficient "to warrant the risk of renal injury vs. the benefit of treating" MRSA with Vancomycin, which is known to be one of the few drugs that can successfully combat it. The examiner also observed that the treatment providers took "caution ... to avoid inappropriate dosing of vancomycin" given their initial understanding of the Veteran's abnormal kidney function. The examiner further acknowledged that the initial cause of the Veteran's acute arthritisor "septic knee," in the Veteran's parlancewas misdiagnosed. However, the examiner pointed out in that connection that the symptoms of septic arthritis and crystal arthropathies "can be difficult to distinguish on physical exam," and noted that once testing results were available to aid in diagnosis three days after the Veteran was admitted to the VA hospital, the vancomycin was promptly discontinued. The examiner also observed that the risk of renal toxicity due to the vancomycin treatment was reasonably foreseen by the Veteran's treatment providers, who took "multiple steps" to avoid such, although these steps were ultimately unsuccessful. The examiner concluded that although the Veteran's renal disease would have been less likely to occur had the arthritis been properly diagnosed when he was first admitted to the hospital, such an observation is made only "in hindsight," given the difficulty in differential diagnoses in the Veteran's presentation as discussed above, and that the decisions made during the course of the Veteran's care were ultimately "within the standard of care based on information available at the time." Based on the above, the Board concludes that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for his chronic kidney disease. To be clear, the Board finds that the Veteran suffered from an additional disability as a result of his November 2014 VA treatment, namely, an acute kidney injury. However, the Board finds that the persuasive weight of the evidence discussed above demonstrates that the injury to his kidneys was not incurred as a result of VA negligence, carelessness, or other fault. The Board further finds, as set out in the VA opinion and also discussed above, that VA exercised the degree of care that would be expected of a reasonable health care provider at the time. The June 2016, January 2020, and November 2021 VA examiners all concluded that there was no VA healthcare provider fault or negligence in prescribing, administering, or monitoring the medication in the context of treating the Veteran's knee complaints. The decision to use certain antibiotics that have known toxicity is a judgement call that includes weighing the benefits over the risks. The record reflects pharmacy and nephrology consults were initiated regarding Vancomycin. The November 2021 VA examiner specifically discussed the initial misdiagnosis of "septic knee" and concluded, based on an extensive rationale discussed above, that the initial diagnosis was reasonable given the facts available at the time and that the treatment with Vancomycin was discontinued once it was determined that it was inappropriate. There is no medical opinion to the contrary. The Board is sympathetic to the Veteran's argument that the VA employee was negligent in failing to transfer his medical records to the VA Hospital in Bay Pines and that he was misdiagnosed with a "septic knee" at the VA hospital. However, the Veteran has not submitted evidence, and the record does not show, that the Veteran's actual November 2014 VA treatment was negligent, or that his kidney injury was not reasonably foreseeable, as required for compensation under 38 U.S.C. § 1151. The VA examiners each specifically found that there was no failure on the part of the VA to timely diagnose and properly treat the claimed disease or disability, or that the VA allowed the disease or disability to progress. The examiner further found the initial diagnosis of "septic knee" and its attendant treatment to be reasonable, given the initial symptom presentation, and a diagnosis that was corrected and properly treated by VA personnel once test results were obtained. In conclusion, the Board finds that compensation under 38 U.S.C. § 1151 for chronic kidney disease due to treatment in November 2014 at a VA hospital is not warranted. Because the persuasive weight of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bess, T. 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.