Citation Nr: 18144527 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-34 332 DATE: October 24, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left thumb metacarpophalangeal (MCP) joint is remanded. FINDINGS OF FACT 1. The Veteran did not undergo a blood transfusion at a VA medical center. 2. His 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 not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for hepatitis C have not been met. 38 U.S.C. § 1151, 5103A, 5107 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 for September 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). 1151 Eligibility Under VA laws and regulations, when a Veteran suffers additional disability as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The Veteran must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, 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. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability. Merely showing that a Veteran received care, treatment, or examination and that that the Veteran has an additional disability 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 diagnosis and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). 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 VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran’s additional disability 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. 38 C.F.R. § 3.361(d)(2). The Veteran asserts he is entitled to service connection for hepatitis C pursuant to 38 U.S.C. § 1151. Specifically, the Veteran asserts that he contracted hepatitis C as a result of a surgical procedure to repair a hernia in 1976 during which he reportedly received a blood transfusion. After a review of the evidence of record, the Board finds that compensation benefits under the provisions of 38 U.S.C. § 1151 for hepatitis C are not warranted. A review of the evidence of record shows that the Veteran requested a herniorrhaphy in August 1976. The Veteran underwent a left inguinal herniorrhaphy that same month. An operation report detailed the surgical procedure but does not note that a blood transfusion occurred. An October 1976 outpatient follow-up record noted that the hernia repair looked good and the Veteran was cleared to return to full activities in the following ten-days. A March 1994 VA psychiatric record noted a history of polysubstance abuse including alcohol, cocaine and heroin. An April 1999 VA psychiatry record shows the Veteran reported a long history of alcohol and drug abuse. The Veteran currently reported using cocaine and drinking between one pint and one case of beer per day. In October 2001, the Veteran reported using crack cocaine and alcohol. A March 2004 VA medical record noted the Veteran tested positive for hepatitic C in December 2003. In May 2005, the Veteran denied a history of blood transfusions or IV drug use. He did report a past medical history for hernia repair. An April 2008 VA discharge summary noted the Veteran was known positive for hepatitis C since 2003. The Veteran denied any IV drug use. Tattoos were noted on his shoulders. An October 2008 VA gastroenterology consultation record shows the Veteran reported past surgical medical histories but denied ever having had a blood transfusion. The Veteran also denied any IV drug use. He did report receiving tattoos in 1991 and 1992 at a parlor in Hawaii. Other tattoos were reported received “by a friend” in the late 1980’s. In addition, the Veteran reported that he pierced his ears with a needle that was not shared. Other hepatitis C risk factors included working as an orderly at a medical facility from 1986-1988. A March 2009 VA psychiatric examination shows the Veteran reported that during active duty service he began using drugs. He further reported that he used “everything,” most often cannabis and acid. He additionally reported using cannabis, cocaine and acid after separation from service. In October 2009, the Veteran underwent a hepatitic C risk assessment to determine whether the following were present: blood transfusion before 1992, IV drug use; exposure to blood or blood products; multiple sex partners; hemodialysis; tattoos or body piercings; cocaine use; unexplained liver disease; unexplained abnormal ALT; history of alcohol abuse; or previous positive test for other bloodborne viruses. The Veteran only reported having a tattoo and repeated body piercing. The Veteran again denied having had a blood transfusion in October 2010. In his May 2013 notice of disagreement, the Veteran asserted that he had surgery at the his VA medical center in the summer of 1976 and that he thought he had received blood products. He further reported that he has had several other surgeries at the same medical center. The Veteran underwent a VA examination in August 2015. The examiner opined that it was “not at least as likely as not that the Veteran’s hepatitis C is due to or the result of left inguinal hernia repair or any other surgery in the record.” The examiner noted the Veteran’s report of a possible blood transfusion in 1976 during a hernia repair, however, the related surgical record was noted as void of any such complication. The examiner further noted that the record showed the Veteran denied having had any blood transfusion in 2005 and in 2011. As to demonstrable hepatitis C risk factors, the examiner noted that the Veteran was positive for alcohol and illicit drug use dependence, tattoos and homelessness. As such, the examiner found that the record did not support the contention that the Veteran contracted hepatitis C from a blood transfusion or from any other event associated with his 1976 herniorrhaphy. Initially, the Board notes that the threshold element for 38 U.S.C. § 1151 compensation, the presence of a qualifying additional disability, has been met in this case. The record establishes that the Veteran has tested positive for hepatitis C. The remaining question is whether his hepatitis C was proximately caused by VA’s care, treatment, or lack thereof. In this regard, the Board finds that the weight of the evidence does not establish that the Veteran’s hepatitis C is due to a blood transfusion received at a VA medical center, to include during the 1976 herniorrhaphy. Absent competent evidence of a having received a blood transfusion, the Veteran’s hepatitis C cannot be said to have resulted from VA’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The Board recognizes that a Veteran is competent to report on that which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in the present case, while the Veteran has reported receiving a blood transfusion during the 1976 herniorrhaphy, the medical records evidence numerous times the Veteran denied ever having had a blood transfusion. Moreover, the 1976 surgery record did not note that any blood products were received, which the Board finds more persuasive as this record was created at the time of the surgery. Accordingly, the Board finds the Veteran an unreliable historian and little probative value is assigned to his statements regarding having received a blood transfusion absent objective evidence of such. Conversely, the Board finds the August 2015 VA examination report as well as the VA medical records documenting numerous other hepatitis C risk factors the most probative evidence of record. The examiner opined that it was “not at least as likely as not” that the Veteran’s hepatitis C was due to or the result of the 1976 herniorrhaphy “or any other surgery in the record.” In support of this opinion, the examiner noted the absence of any evidence of a blood transfusion and instead noted the demonstrable hepatitis C risk factors such as illicit drug use and tattoos. The examiner’s rationale is supported by the evidence of record. Thus, absent credible evidence showing the Veteran underwent a blood transfusion at a VA facility, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Veteran asserts entitlement to service connection for a left thumb disability. Specifically, the Veteran asserts that his current left thumb disability resulted from an injury sustained as a result of surgical treatment received at his VA medical center. A review of the evidence of record shows that in November 2007, the Veteran reported that he dislocated his left thumb a year prior. The Veteran was noted to have full flexion of his thumb but had pain with hyperextension. A February 2008 VA orthopedic consultation record noted left thumb pain and instability and diagnostic testing revealed chronic left thumb MCP radial collateral insufficiency. The physician stated that he discussed the findings with the Veteran and the need for reconstruction of the radial collateral ligament about the left thumb MCP joint. A joint fusion was not recommended given the Veteran’s employment as a manual laborer. On September 4, 2008, the Veteran signed an informed consent form for the following surgical procedures: ligament repair; ball arthroplasty; and repair of gamekeeper’s thumb. The Veteran underwent a left thumb surgical procedure on September 8, 2008. The surgical report described a procedure that utilized a tension wire technique. The report does not appear to reference the surgical procedures outlined in the September 4, 2008 signed consent form. However, it does note that informed consent was obtained prior to the procedure. A December 2008 pathology report noted the Veteran presented with failed hardware in the left thumb and that he presented for removal of the hardware. He was diagnosed with painful hardware left thumb. A December 2008 operation report noted the Veteran underwent a left thumb and CP fusion surgery several months prior. The Veteran reported pain at the implant site and the thumb was noted as well fused. The Veteran requested implant removal. No range of motion of the MCP joint was found. Subsequent VA medical records show the Veteran complained of left thumb stiffness, including in February and April 2009. The Veteran underwent a VA examination in August 2015. The examiner opined that it was “not at least as likely as not that the Veteran has a chronic residual problem with his left thumb/hand as a result of left thumb surgery” in 2008. In support of this opinion, the examiner noted that prior to surgery in September 2008, the Veteran complained of pain in his left thumb due to arthritis and instability of the MCP joint. The examiner also noted that the September 2008 surgery was noted as straight forward without any mention of an interoperative finding that precluded performing the planned joint replacement. The examiner also noted that the surgical fixation hardware was removed in December 2008 due to pain. The underlying fusion of the MCP joint was found to have effectively taken care of the instability but that the Veteran continued to have pain. In this regard, pain was noted to have preexisted the fusion surgery and did not appear to be a residual of that surgery. The examiner did find that stiffness of the left thumb (i.e. loss of ROM) was a residual of the surgery. The examiner further noted that fusion of the MCP joint “was not an expected outcome” as that procedure was apparently not explained to the Veteran during the informed consent procedure. However, the current stiffness was not found to be problematic as it did not significantly affect the effectiveness of the thumb in grasping and holding. Additionally, the examiner noted that the Veteran no longer complained of stiffness of the thumb. Therefore, the examiner opined that the left thumb stiffness was thereby not a residual or the surgical procedure. The Board finds the August 2015 VA examination inadequate. First, the Board notes that the Veteran was not physically examined in relation to the examination report. Despite the lack of an in-person examination, the examiner concluded that the Veteran no longer complained of stiffness affecting his left thumb. In this regard, the Board notes that the Veteran reported receiving all of his medical care through the VA medical system. However, the most recent VA medical record contained in the claims file is dated December 2010. Finally, the VA examiner appears to state that the left thumb surgery performed in September 2008 was not the surgical procedure for which the Veteran had given his informed consent. Specifically, the examiner stated “[f]usion of the MCP was not an expected outcome from the Veteran’s point of view and was apparently not explained to the Veteran during the informed consent procedure.” As noted above, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing surgical treatment, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished surgical treatment without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Accordingly, clarification as to whether VA performed a surgical procedure without the requisite informed consent or whether VA performed the wrong surgical procedure will be helpful in adjudicating the issue on appeal. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. In particular, VA records dated from December 2010 to the present should be associated with the claims file. 2. Then, the Veteran should be scheduled for a VA orthopedic examination. The entire claims file including a copy of this remand should be reviewed by the examiner. For the claim of entitlement to compensation under 38 U.S.C. § 1151, the examiner should provide the following opinions: (a) Did VA properly obtain the Veteran’s informed consent prior to the September 2008 left thumb surgery? (b) Was the September 2008 left thumb surgery the surgical procedure for which the Veteran provided his informed consent? (c) Is at least as likely as not (a 50 percent probability or greater) that the Veteran has a left thumb disability as a result of the medical care, or a lack thereof, to include failure to timely diagnose or treat, received at the VA medical center, to include as a result of the September 2008 and December 2008 left thumb surgeries? Please explain why or why not. (d) Is it at least as likely as not (a 50 percent probability or greater) that any additional left thumb disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? Please explain why or why not. (e) Notwithstanding the acknowledgement of informed consent, based upon the specific facts and circumstances of the Veteran’s case, was any additional left thumb disability a reasonably foreseeable outcome of the treatment received, including the left thumb surgeries? Please explain why or why not. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing an answer to that particular question. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel