Citation Nr: 1234616 Decision Date: 10/04/12 Archive Date: 10/11/12 DOCKET NO. 06-07 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in February 2010 and October 2011 for further development. The Board notes that following the July 2001 rating decision, the Veteran filed a timely notice of disagreement in August 2001. The RO issued a statement of the case in February 2002. However, the Veteran failed to file a VA Form 9. Instead, the Veteran submitted an April 2002 statement in support of the claim (VA Form 21-4138) along with two affidavits. In the absence of a VA Form 9, the RO did not consider the matter on appeal, and the claim remained dormant until the Veteran submitted an August 2005 correspondence requesting an update on the status of the claim. Since the Veteran had not filed a formal appeal in response to the February 2002 statement of the case, the RO apparently viewed the August 2005 correspondence as a claim to reopen. The RO issued VCAA notice in August 2005. The notice stated that the Veteran's claim had previously been denied, and that new and material evidence was required to reopen the claim. However, instead of issuing a rating decision addressing whether new and material evidence had been received to reopen the claim, the RO issued a February 2006 supplemental statement of the case in which it addressed the issue on a de novo basis. The RO notified the Veteran that he would have to file a substantive appeal in order for the claim to be decided by the Board. The Veteran filed a substantive appeal (VA Form 9) in March 2006. The Board finds that with the exception of the August 2005 VCAA notice, the RO has adjudicated the claim on a de novo basis. It has not adjudicated the issue of whether new and material evidence has been received to reopen the claim that should have been final in the absence of a timely VA Form 9 following the February 2002 statement of the claim. Given that the RO has adjudicated the claim on a de novo basis, and given that the Board's February 2010 and October 2011 remands have listed the issue as a de novo claim, the Board finds that the Veteran's April 2002 statement in support of the claim (VA Form 21-4138) constitutes a timely substantive appeal in lieu of a VA Form 9. Consequently, the original July 2001 RO rating decision was never made final, and the claim is before the Board on a de novo basis. Additionally, the Board notes that the Board, in its February 2010 remand, noted that the Veteran raised the issues of entitlement to service connection for hemorrhoids, anal fistula, lumbar spine disability, a skin disability, hepatitis B and C, and human immunodeficiency virus (HIV). As these matters are not currently developed or certified for appellate review, it is referred to the RO for appropriate action. FINDING OF FACT The Veteran did not incur hepatitis C as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA, or as a result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for hepatitis C have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in August 2005, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a February 2006 supplemental statement of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection were denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise. The Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his hepatitis C. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board feels that an examination is not required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as the evidence of record fails to suggest that hepatitis C, first reported many years post service, had its onset in service or is otherwise related thereto. §1151 The Veteran is claiming entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for hepatitis C that he contends was incurred as a result of a blood transfusion that he received in March 1970 when he underwent surgery. Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any Veteran suffers an injury or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . . awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such Veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such Veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151 (West 1991). Earlier interpretations of the pertinent statute and regulations required evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to 38 U.S.C.A. § 1151 benefits. See, e.g., 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court), in Gardner v. Derwinski, 1 Vet. App. 584 (1991). The Gardner decision was affirmed by both the United States Court of Appeals for the Federal Circuit, see Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, see Brown v. Gardner, 513 U.S. 115 (1994). The United States Supreme Court, in affirming the Court's decision, held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. See Brown, supra. 38 C.F.R. § 3.358 was amended in 1995 to conform to the Supreme Court decision. The amendment was effective November 25, 1991, the date the Court issued the Gardner decision. 60 Fed. Reg. 14,222 (March 16, 1995). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude benefits in the absence of evidence of VA carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an unforeseen event. Pub. L. No. 104- 204, § 422(a), 110 Stat. 2926 (Sept. 26, 1996), codified at 38 U.S.C.A. § 1151 (West 2002). The revised provisions of 38 C.F.R. § 3.358 state that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for such additional disability. Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the Veteran. 38 C.F.R. § 3.358(c)(3). "Necessary consequences" are those that are certain or intended to result from the VA hospitalization or medical or surgical treatment. Id. As noted above, the amended version of 38 U.S.C.A. § 1151 has added the requirement that there must be evidence showing that the additional disability for which benefits are sought was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997, were amended. See 69 Fed. Reg. 46,426 (Aug. 3, 2004) [adding 38 C.F.R. § 3.361]. Those regulations largely implemented the provisions of 38 U.S.C.A. § 1151. In pertinent part, 38 C.F.R. § 3.361 provides as follows: In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). 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). The Veteran contends that he underwent a blood transfusion during surgery in March 1970, and that he incurred hepatitis C as a result of the blood transfusion. An October 2001 report of contact reflects that the Veteran contends that in 1971, the Red Cross told him that he could not give blood because he had hepatitis C. He further contends that he was diagnosed with hepatitis C in 1989, while being treated by the VA. In support of his claim, he submitted two affidavits. The first affidavit is from his ex-spouse (A.S.) and the other is from a friend (W.P.). Both affiants state that they visited the Veteran in the hospital on March 2, 1970, while the Veteran was receiving a blood transfusion. The treatment records reflect that the Veteran was admitted to the hospital in February 1970 with a four month history of draining rectal lesion. There was no history of constipation, bloody stools, or tuberculosis. Physical examination revealed a classical fistula in ano in the posterior area of the anus. The Veteran underwent a fistulotomy on March 2, 1970. The surgery was performed without complications under general anesthesia. He was discharged on March 4, 1970. The operative report reflects that blood loss was minimal and that the Veteran tolerated the procedure well. There is no indication that the Veteran underwent a blood transfusion. The first post service VA outpatient treatment records are dated September 1992, when the Veteran sought treatment for blood in his stool. He underwent a flexible sigmoidoscopy. He was diagnosed with multiple focal ulcerations of the sigmoid colon. Records also indicate that the Veteran wanted to take the HIV test because he had risk factors (including homosexual sexual contact in approximately 1987). Treatment records dated September 1992 through October 1995 fail to reflect a diagnosis of hepatitis C. The Veteran was diagnosed as HIV positive in March 2001. Risk factors included sex with multiple partners, including prostitutes and crack cocaine users). At that time, the Veteran still had not been diagnosed with hepatitis C. The Board notes that a positive HIV diagnosis is a risk factor for hepatitis C. The Board notes that the Veteran, his ex-spouse, and his friend (W.P.) are competent to render testimony regarding things that they observed (the Veteran undergoing a blood transfusion). However, the Board finds that this evidence, dated March 2002 (32 years after service) is less probative than the operative report and the hospital discharge report which are contemporaneous with service. These reports not only fail to reflect that the Veteran underwent a blood transfusion; but they specifically state that "blood loss was minimal," there were no complications, and the Veteran tolerated the procedure well. Consequently, the records contemporaneous with service fail to reflect any basis for an alleged blood transplant. While the Board acknowledges the competent and credible testimony of the affiants, it finds that its remoteness to service makes it less probative than the contemporaneous treatment records. The Board lends more weight to these records. The Board finds one aspect of the Veteran's statements to be not credible. Specifically, the Veteran contends that the Red Cross told him (in 1971) that he could not give blood because he had hepatitis C. The Board notes that the hepatitis C virus was not even discovered until the 1980s; it was not properly identified until 1989; and the screening process that made it possible to detect the hepatitis C virus in blood samples was not developed until 1991. Finally, the Board finds that even if the Veteran had undergone a blood transfusion and had incurred the hepatitis C virus as a result of the blood transfusion, the Veteran still has not provided any evidence that this constituted carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care. As noted above, the hepatitis C virus was not discovered for many years after the Veteran's alleged blood transfusion, and the screening process that made it possible to detect the hepatitis C virus in blood samples was not developed until 1991. Consequently, there was no way for the VA to have known that administering a blood transfusion carried the risk of transmitting the hepatitis C virus. In the absence of any findings attributable to hepatitis C in service or for decades after service, and in the absence of a competent medical opinion linking hepatitis C to an alleged blood transfusion, and in the presence of other hepatitis C risk factors (positive for HIV), the Board finds that the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for compensation under 38 U.S.C.A. § 1151 for hepatitis C must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER The appeal is denied. ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs