Citation Nr: 1307543 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-30 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for hepatitis C. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service from August 1953 to June 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran originally requested a Travel Board hearing; however, the Veteran subsequently cancelled the requested hearing. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e). In June 2012, the Board remanded the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for hepatitis C. The case has returned to the Board for appellate review. In his August 2009 substantive appeal (VA Form 9), the Veteran asserted that his father filed a claim on his behalf in April 1957, and he has not received anything. The Board notes that the RO denied the claim for permanent and total disability in a May 1957 rating decision, a copy of which is available in the Veteran's claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's hepatitis C did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for 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 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by letters issued in July 2006, August 2006, May 2007, June 2012, and September 2012, which advised the Veteran of the criteria for establishing entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. The July 2006, August 2006, and May 2007 letters were sent prior to the initial adjudication of the Veteran's claim, and AOJ most recently readjudicated the claim in January 2013. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's available service treatment record and records of his post-service VA and private treatment. The RO also requested both the remaining service treatment records and the remaining 1956 and 1957 VA treatment records identified by the Veteran. In August 2006, the National Personnel Records Center (NPRC) replied that the Veteran's service treatment records were fire-related; the RO subsequently sent an August 2006 letter to the Veteran informing him of the fire at the National Archives and Records Administration on July 12, 1973, and of the fact that his service treatment records may have been destroyed in the fire. In December 2007, VA informed the Veteran that his VA treatment records would have been destroyed after 15 years. The RO issued Formal Findings of Unavailability of those records in June 2009, April 2011, and November 2012, and concluded that the records are unavailable, all procedures to obtain the records have been correctly followed, all efforts to obtain the needed information have been exhausted, and further attempts would be futile. 38 C.F.R. § 3.159(c). The RO also requested that the Veteran provide these records if they were in his possession. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. The VA records review and opinion provided to the Veteran in October 2012 was adequate because the examiner considered the Veteran's medical history, described his hepatitis C in detail, and provided a nexus opinion and accompanying rationale which cited the Veteran's current diagnosis and VA treatment. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). Additionally, there is substantial compliance with the Board's June 2012 remand instructions. The Board's instructions included requesting information regarding any additional treatment records, and obtaining a VA records review and opinion. In response, the AOJ sent the Veteran June 2012 and September 2012 letters that requested additional information regarding treatment records. The AOJ also obtained a records review and opinion regarding the effect of the Veteran's VA treatment on his hepatitis C in October 2012. Although the records review and opinion was provided by a nurse practitioner and not a physician, which the Board had requested, the Board finds that the Veteran was not prejudiced thereby because the nurse practitioner qualifies as a medical expert and was able to provide an opinion based on the evidence of record. 38 C.F.R. § 3.159(a)(1). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Pursuant to 38 U.S.C. § 1151, a Veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C. § 1151(a); 38 C.F.R § 3.361. "To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the....medical or surgical treatment...upon which the claim is based to the Veteran's condition after such...treatment." 38 C.F.R § 3.361(b). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R § 3.361(c)(1). When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment. 38 C.F.R § 3.361(c)(3). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that 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 care, treatment, or examination without the Veteran's informed consent. 38 C.F.R § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable," but 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)(1). The Veteran contends in his May 2006 claim that he contracted hepatitis C as a result of treatment at the VA Medical Center (MC) in Memphis, Tennessee. In September 2006, the Veteran reported that this treatment had been for burns and had lasted from March 1956 to August 1956. In his September 2008 notice of disagreement, August 2009 substantive appeal, and June 2011 statement, the Veteran asserted that he had received a blood transfusion during his treatment at the Memphis VAMC. The Board finds that the most probative evidence of record shows that the claimed disability was not actually caused by VA care, treatment, or examination. The record shows the Veteran was initially diagnosed with hepatitis C in April 2001, and he did not have a diagnosis of hepatitis prior to the March 1956 VA treatment. The Board further finds, however, that the Veteran's hepatitis C was not actually caused by VA care, treatment, or examination. 38 C.F.R § 3.361(c)(1). In October 2012, a VA clinician opined: The only known risk factor for Hepatitis C per oral history of [the] Veteran is a blood transfusion given in 1956. [The] Veteran was diagnosed with Hepatitis C in 2001, 45 years after his treatment for his burn injuries. When [the] Veteran began treatment for his Hepatitis C in 2001, liver ultr[a]sounds were negative for evidence of Cirrhosis or nodular development. It is this examiner's opinion, with the 45 year time frame of oral history of blood transfusion and diagnosis of hepatitis C, [that] it is less likely than not due to or caused by [the] Veteran's report of blood transfusion given in 1956. With the lack of other risk factors per [the] Veteran's oral history, it is more likely than not [that the] Veteran's hepatitis C would be classified as [within the] 20% of cases [in which the] cause of transmission [of hepatitis C is] unknown. In May 2006, the Veteran's private physician, Dr. P. Bernheim, found that "[t]he only identifiable risk factor [for hepatitis C] was a history of blood transfusions in the 1950s, which occurred during treatment for a severe burn injury." Dr. Bernheim did not provide an opinion or rationale as to whether the Veteran's hepatitis C was caused by the blood transfusion at the Memphis VAMC, or whether it was more likely to be among the cases in which the cause of transmission is unknown. The Board finds that the October 2012 VA clinician's opinion that the Veteran's hepatitis C was less likely than not to have been caused by his reported 1956 blood transfusion at the Memphis VAMC is the most probative because it includes a persuasive rationale, viz., that there were 45 years between the blood transfusion and the diagnosis of hepatitis C, and there was no Cirrhosis or nodular development shown on liver ultrasounds taken at the onset of treatment in 2001. Moreover, the October 2012 VA clinician noted that the Veteran had reported that he was unaware of any problems with his liver until he attempted to make a blood donation. Finally, the Board finds that the Veteran's opinion regarding the cause of his hepatitis C is entitled to no probative weight because that issue is complex. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (certain conditions are not capable of lay diagnosis); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent). In this case, because hepatitis C is not subject to lay observation and requires complex medical testing, the Board finds that the Veteran's opinion as to the cause thereof is not competent for VA purposes. Based on the foregoing, the Board finds that entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for hepatitis C is not warranted because the Veteran's treatment, to include blood transfusions, at the Memphis, Tennessee VAMC did not cause his hepatitis C. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for hepatitis C is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs