Citation Nr: 18158250 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 15-24 241 DATE: December 18, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for compensation under 38 U.S.C. § 1151 for hepatitis C is granted. Entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C is granted. FINDINGS OF FACT 1. The Veteran did not appeal a December 2006 rating decision which denied entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C, but evidence received since that decision raises a reasonable possibility of substantiating the claim. 2. The medical treatment provided by VA for hemophilia following dental extractions resulted in the additional disability of hepatitis C, and this disorder was proximately caused by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for new and material evidence having been met, the claim of entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to compensation under 38 U.S.C. 1151 hepatitis C have been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A Notice of Disagreement was received in September 2013; a Statement of the Case was issued in April 2015; and a VA Form 9 (substantive appeal) was submitted in June 2015. The Veteran testified before the undersigned Veterans Law Judge in November 2018; a transcript is of record. 1. New and Material Evidence A claim for entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C was originally denied in a December 2006 rating decision on the basis that the evidence failed to establish that such condition was caused by VA hospital, medical or surgical treatment. The Veteran properly was notified of this decision and of his appellate right, but he did not file a substantive appeal; therefore, the decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Evidence received since the December 2006 decision includes a July 2012 opinion from Dr. G.M.A., a private physician. Specifically, Dr. G.M.A opined that it was likely as not that the Veteran’s hepatitis C was contracted in a VA facility and this was not a risk factor that was reasonably foreseeable at the time he contracted hepatitis C. The Board finds the July 2012 opinion from Dr. G.M.A. constitutes both new and material evidence sufficient to reopen the claim for entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C. See 38 C.F.R. § 3.156(a). 2. Compensation Pursuant to 38 U.S.C. § 1151 The Veteran contends that he contracted hepatitis C from blood transfusions he received at the VAMC Gainesville following dental extractions in the 1970’s. A Veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability...were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R.§ 3.361(c). Merely showing that a Veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). In this regard, 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 this case, a VA Gainesville Hospital Summary dated in July 1977 reflects that the Veteran had three lower teeth extracted by a local dentist. This was followed by continuous oozing from the extraction sites despite packing and Vitamin K injections. The Veteran was subsequently admitted to the VA Gainesville Hospital where laboratory tests confirmed a hemophilia diagnosis. As a result, he received cryo precipitating fusions on several occasions until his factor 8 levels returned to above 50 percent. Further extractions were then recommended by a VA dentist. This was undertaken while the Veteran was receiving daily cryo precipitating fusions. The Veteran was subsequently diagnosed with hepatitis C. As noted, the Veteran submitted a statement from Dr. G.M.A., in which he opined that it was likely as not that the Veteran’s hepatitis C was contracted in a VA facility and this was not a risk factor that was reasonably foreseeable at the time he contracted hepatitis C. (Emphasis added). In so finding, Dr. G.M.A. reviewed the Veteran’s entire VA medical file, conducted independent research, and recalled his own medical knowledge about contaminated blood products in the 1970’s. The Board considers Dr. G.M.A.’s opinion to be highly probative as to the issues of causation and foreseeability as it is supported by rationale and uncontradicted by other medical evidence of record. In this regard, the Board acknowledges that a March 2013 VA examiner opined that the Veteran’s hepatitis C was more likely unrelated to, or caused by VA treatment. However, as the examiner failed to address foreseeability, the opinion is of no probative value on this issue. Again, pursuant to 38 U.S.C. § 1151 (a)(1)(b), whether VA negligently caused the Veteran’s hepatitis C (i.e., due to some instance of fault on the part of VA in furnishing the medical treatment) is irrelevant if the additional disability is caused by an event that was not reasonably foreseeable. See also 38 C.F.R. § 3.361 (d)(2). (Continued on the next page)   After careful consideration of the evidence of record, to specifically include Dr. G.M.A.’s highly probative opinion, the Board concludes that there is sufficient evidentiary support for finding that contracting hepatitis C from blood transfusions for VA treatment of hemophilia after tooth extractions was an event not reasonably foreseeable, and was the proximate cause of the additional disability, hepatitis C. 38 U.S.C. § 1151 (a)(1)(b); 38 C.F.R. § 3.361 (d)(2). Accordingly, the appeal is granted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel