Citation Nr: 1125825	
Decision Date: 07/08/11    Archive Date: 07/15/11

DOCKET NO.  05-40 266	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for Hepatitis C, claimed as related to blood transfusion performed in February 1982. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel


INTRODUCTION

The Veteran had active duty service from May 1969 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision of the San Juan, Puerto Rico regional office (RO) of the Department of Veterans Affairs (VA) denying entitlement to compensation for Hepatitis C under the provisions of 38 U.S.C.A. § 1151.

The Veteran testified at a hearing before a decision review officer at the RO in February 2006; and before the undersigned at an April 2009 hearing at the Board.  Transcripts of these hearing have been associated with the claims folder.  

The Board remanded the appeal in July 2009 for additional development.  The development has been completed, and the appeal is ready for review on the merits.  


FINDINGS OF FACT

1.  The Veteran contracted Hepatitis C during a February 1982 blood transfusion at a VA facility.   

2.  The risk of contracting Hepatitis C from blood transfusion was not a reasonably foreseeable event at the time.  


CONCLUSION OF LAW

The criteria for entitlement to benefits pursuant to 38 U.S.C.A § 1151 for Hepatitis C have been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

As the Board is granting the claim, it is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Laws and regulations

The Veteran filed his claim for compensation under the provisions of 38 U.S.C.A § 1151 in July 2003.  The version of 38 U.S.C.A. § 1151 applicable to claims filed on or after October 1, 1997 provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected.  38 U.S.C.A. § 1151.

A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C.A. § 1701(3)(A), and (2) the proximate cause of the disability or death was (a) 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 (b) an event not reasonably foreseeable.  Id.

The implementing regulation applicable to 1151 claims received on or after October 1, 1997 is 38 C.F.R. § 3.361, which provides that, in order to determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately.  To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death.  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).

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. 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death as explained in 38 C.F.R. § 3.361(c) and that (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 the Veteran's or, in appropriate cases, the Veteran's representative's informed consent.  38 C.F.R. § 3.361(d)(1).

The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2).

Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Evidence and analysis

In February 1982, the Veteran received a blood transfusion at a VA hospital in connection with surgery.  Over fifteen years later, he was diagnosed with Hepatitis C.  Aside from the blood transfusion, the Veteran did not have any reported risk factors for acquiring Hepatitis C.  

In October 2009 a VA physician opined that the most likely cause of exposure Hepatitis C was the February 1982 blood transfusion.  She explained that Hepatitis C was commonly spread by blood transfusions prior to 1992.  Since then, a blood test has been developed to accurately screen the disease.  The examiner opined that the Hepatitis C infection did not involve carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part.  She also opined that it was reasonably foreseeable.  She did not provide further explanation for her opinions. 

The Board found an article chronicling the history of Hepatitis C.  Hepatitis C, Wikipedia.com, http://en.wikipedia.org/wiki/Hepatitis_C (last visited June 22, 2011).  It stated that in the mid 1970s medical researchers identified hepatitis cases that could not be categorized as Hepatitis A or B.  Id.  The unknown hepatitis was recognized in April 1989 as Hepatitis C, which led to subsequent Hepatitis C blood screenings.  See id.   

Thus, in 1982 the risk of contracting Hepatitis C through any blood transfusion would have been unknown to healthcare providers and could not have been disclosed to the Veteran.  See id.  In other words, obtaining informed consent regarding the risk of contracting Hepatitis C was impossible.  38 C.F.R. § 3.361(d)(2).  Significantly, the consent forms associated with the 1982 surgery do not list any type of hepatitis as a possible risk from the surgery or associated treatment.

Although the October 2009 opinion states that Hepatitis C was a reasonably foreseeable event from the 1982 blood transfusion, the record does not show that the Veteran was informed of this possible consequence.  Hence, it cannot be found that he gave informed consent.  Accordingly, the resulting Hepatitis C must be viewed as an unforeseen event.  38 C.F.R. § 3.361(d)(2); 38 C.F.R. § 17.32. 

The criteria for the grant of compensation for Hepatitis C under 38 U.S.C.A. § 1151 are met.  The appeal is granted.


ORDER

Compensation pursuant to 38 U.S.C.A. § 1151 for Hepatitis C is granted. 



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs