Citation Nr: 1511790 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 10-38 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B due to endoscopy procedure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of August 2009. In June 2012, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). The appeal was previously remanded in April 2013 and again in July 2014. FINDINGS OF FACT 1. A colonoscopy performed in November 2004 did not result in additional disability, including hepatitis B. 2. The Veteran did not undergo any other endoscopic procedure at a VA facility that resulted in additional disability, including hepatitis B. CONCLUSION OF LAW The criteria for compensation for hepatitis B claimed to result from an endoscopy procedure in the Miami VAMC have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in June 2009, prior to the adjudication of the claims, the RO notified the Veteran of the information necessary to substantiate the claim on appeal, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was notified the Veteran of the information necessary to substantiate the claim for compensation under 38 U.S.C.A. § 1151 on appeal, and of his and VA's respective obligations for obtaining specified different types of evidence. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). Service and VA treatment records have been obtained, as have Social Security Administration (SSA) records. A VA examination is not warranted in this case because, as discussed below, the evidence establishes that no additional disability was incurred as a result of the Veteran's colonoscopy in November 2004. The case was remanded to obtain records of an additional colonoscopy claimed by the Veteran to have been provided at the Miami VAMC in 2006. All potentially relevant records from the facility have been obtained, and they show no additional colonoscopy or other endoscopic testing was conducted at the Miami VAMC during the time that suspect tubing was used. There is no Special Care chart review besides the one conducted concerning the November 2004 colonoscopy. Hence, the Board finds that the remand terms have been substantially complied with. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (remand terms must be complied with, unless an explanation is provided as to why the terms will not be fulfilled); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the veteran is entitled to substantial compliance with the Board's remand directives). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2012. At the hearing, the undersigned explained the type of evidence that would be relevant to his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Additional evidence was obtained on remand as a result. Also, it was clarified that the Veteran had no additional evidence, and that records of his plasma donations were unavailable. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Compensation under 38 U.S.C.A. § 1151 The Veteran claims that his currently diagnosed hepatitis B is the result of the improper disinfection of endoscopic equipment used during one or more colonoscopies performed at the VA Medical Center (VAMC) in Miami, Florida. He asserts that compensation under 38 U.S.C.A. § 1151 is warranted. Compensation or DIC shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. In determining whether additional disability exists, VA compares the veteran's physical condition immediately prior to the surgery upon which the claim for benefits is based with the physical condition after the surgery. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the VA medical treatment resulted in the Veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that he had additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). The proximate cause of disability is the action or event that directly caused the additional disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In addition to proximate cause, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that 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). See also VAOPGCPREC 5-01. Medical records from the VAMC Miami show that in November 2004, the Veteran underwent a colonoscopy for history of colon polyps, which was performed under conscious sedation without any complications. Three polyps were removed. He remained hospitalized until the following day for observation, because there was no one to accompany him home. In February 2005, he complained of right groin pain since the colonoscopy. He stated that it felt like there was glass in his groin area when he pressed on the site, and said that the colonoscopy had been painful. He was seen the following day, at which time examination revealed positive, hyperactive bowel sounds. Abdominal X-rays were obtained, which revealed moderate retention of feces in the ascending colon associated with an ileus pattern in the left lower quadrant, and mild prominence of the right lobe of the liver. Liver enzyme tests were normal. The Veteran was seen for a surgical consult. That report noted a long standing history of chronic pain complaints that had been bothering the Veteran since a right inguinal hernia repair in 1992. Recently, he believed he aggravated it by heavy lifting on his job. A recent colonoscopy had been significant for hyperplastic polyps, and he had no history of any other abdominal surgery. The Veteran described numbness in the area right after the surgery 12 years ago that eventually changed into pain and discomfort over time. The impression was that this pain was not an acute surgical issue, but rather a chronic nerve irritation that needed appropriate pain control. In April 2006, the Veteran was seen requesting a hepatitis B workup. He stated that he had been informed that he had the hepatitis B antibody when he donated blood. Laboratory studies were obtained, and when seen for follow-up in June 2006, it was noted that he was very fatigued with no jaundice or anorexia. He had been seen by the health department and counseled. The assessment was newly diagnosed hepatitis B. The surface IgG positive and IgM negative findings suggested that the hepatitis B was not new. Later in June 2006, it was noted that the viral load was high, but that liver function tests were normal. After further testing, treatment for hepatitis B was initiated. Although the Miami VAMC records do not indicate any further endoscopic testing, in September 2006, an abdominal ultrasound was obtained, which showed liver parenchymal disease with a mass which could be a hemangioma, mildly enlarged compared with the study of 2004. A magnetic resonance imaging (MRI) scan was obtained in November 2006, to evaluate the mass that appeared larger on ultrasound compared with the last ultrasound. The MRI revealed at a lesion in the right lobe of the liver was consistent with a hemangioma, and had not changed significantly in size when compared to the report from the MRI from 2004. However, there is no evidence that the hemangioma, first shown in February 2004, is related to the hepatitis B. The hemangioma was first shown on X-rays of the lumbosacral spine in February 2004. Because it appeared on X-rays to be a massive enlargement of the liver, further testing in March and April 2004 was undertaken, including an abdominal ultrasound, a computerized tomography (CT) scan and a magnetic resonance imaging (MRI) scan, which disclosed that the liver was not enlarged, but that he had a hemangioma. A hemangioma is defined as "an extremely common benign tumor, occurring most commonly in infancy and childhood, made up of newly formed blood vessels." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 823 (30th ed. 2003). There is no evidence that the hemangioma is related to the hepatitis B. The tests are mentioned solely to show that although the Veteran did not undergo further endoscopic testing in 2006, he did undergo an ultrasound and MRI in 2006, for a separate condition involving his liver. Then, in March 2009, a letter from the Miami VAMC informed the Veteran of his possible exposure to a potential health risk. Specifically, the letter indicated that a section of tubing attached to endoscopic equipment was rinsed but not disinfected according to the manufacturer's recommendations, between May 2004 and March 2009. He was informed of a risk, believed minimal, of exposure to possible viruses, including hepatitis B, and offered an opportunity for a screening test. However, a second letter from the Miami VAMC, dated in May 2009, informed the Veteran that, after an exhaustive clinical review of his medical record by a dedicated and trained staff physician, it was determined that he was not exposed to the suspect section of tubing. Corresponding VA treatment records, marked "Special Care Chart Review," and dated in April 2009, indicate that a physician and a registered nurse confirmed the type and serial numbers of the endoscopes used for the Veteran's November 2004 VA colonoscopy. A secondary chart review confirmed the findings. Thus, concerning the November 2004 colonoscopy, VA's investigation disclosed that the suspect section of tubing was not employed in the Veteran's colonoscopy. There is no evidence refuting this conclusion. Initially, VA found that a section of tubing had not been properly disinfected, and took steps to notify the individuals who had received endoscopic testing during the appropriate time period, which was from May 2004 to March 2009. However, further chart reviews involving the specific veterans who had testing done during the relevant time period disclosed that the suspect tubing had not, in fact, been used in this Veteran's case. The Veteran himself is not competent to identify the specific tubing used. The Veteran contends that he did not donate any blood between the time of the November 2004 colonoscopy and the 2006 diagnosis of hepatitis B, and, therefore, the colonoscopy must have resulted in the hepatitis B. He also points to evidence indicating that the hepatitis B was not a new condition when initially diagnosed in 2006. However, neither of these makes it more likely that the November 2004 colonoscopy caused the hepatitis B virus, particularly in the face of special chart reviews, which identified the tubing used in the Veteran's colonoscopy as not involving the infected tubing. The Veteran also denied any other risk factors for the transmission of the hepatitis B virus. It is not necessary to address the credibility of these statements, however, because the question for consideration is not how the Veteran acquired the hepatitis B virus, but rather whether the VA colonoscopy was the transmission vehicle. In this regard, there is no evidence or argument that any other procedure or VA treatment resulted in the transmission of the hepatitis B virus to the Veteran. The only evidence potentially linking hepatitis B to the colonoscopy was VA's discovery that a particular part of some endoscopic tubing used in the facility during an identified time period had not been properly sterilized. However, further investigation disclosed that in the Veteran's specific case, the suspect tubing was not used. Thus, the only evidence in the Veteran's favor was refuted by an examination of the Veteran's individual situation. Sometime after November 2006, the Veteran left the Miami area, and subsequently received treatment at the Sioux Falls, Bronx, and Fargo VAMCs. On some of these treatment records, he referred to having undergone another colonoscopy after the November 2004 colonoscopy. Fargo VAMC treatment records show that March 2009, the Veteran reported that he had undergone a second colonoscopy in 2006 in Miami. In July 2009, it was reported that he had had a colonoscopy done at Miami VA in November 2004, and a repeat colonoscopy had been done in 2006 at the same facility. In April 2010, Fargo VAMC records show that he reportedly "apparently has had hepatitis from a previous colonoscopy at Miami." The Veteran has continued to argue this event as the cause of his hepatitis B. In view of the Veteran's history of a second procedure at the Miami VAMC, all pertinent records were obtained. These do not show any colonoscopy or other endoscopic evaluation was conducted during the relevant time period, which, in this case, is from March 2004, when the suspect tubing was first used, and June 2006, when a diagnosis of hepatitis B was clearly shown, or indeed at any time during 2006, when he claims that the second colonoscopy was performed. It is possible that the Veteran is confusing the colonoscopy with other tests which were conducted, including an abdominal ultrasound in September 2006 and an MRI in November 2006. None of these tests, however, were endoscopic tests, which might have involved the insertion of potentially contaminated tubing; instead, they were imaging tests obtained from machines located outside the Veteran's body. Moreover, the medical evidence contains notations that the Veteran is a very poor historian, and he has provided conflicting statements regarding the onset of his hepatitis B. In January 2008, when seen at the Nashville VAMC, the Veteran reported that he had been diagnosed with hepatitis B "many years ago." At the Bronx VAMC in October 2008, it was observed that he was a "relatively poor historian and has trouble providing specific dates, but reports being diagnosed with "hepatitis" while living in Florida in the late 1990's." The numerous medical records on file, including those compiled for the Social Security Administration (SSA), dated from 1988 through 1999, are devoid of any mention of a diagnosis of hepatitis, as are the records pertaining to the November 2004 colonoscopy. There is no evidence corroborating the Veteran's statements that he underwent a second colonoscopy in 2006 at the Miami VAMC. Given the Veteran's inconsistent histories and lack of medical expertise, the Board finds the medical evidence to be of greater probative value. In sum, the evidence reflects that the Veteran did not, in fact, undergo another endoscopic procedure at the Miami VAMC during the pertinent time period, i.e., from March 2004, when the potential for contaminated equipment began, through June 2006, when hepatitis B was diagnosed. Thus, the evidence establishes that there was no additional disability caused by the Veteran's colonoscopy procedure in November 2004, and that he did not undergo another endoscopic procedure at a VA facility prior to the diagnosis of hepatitis B. There is no other evidence indicating that transmission of the virus occurred at a VA facility. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B claimed to result from endoscopy procedure(s) at a VA facility is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs