Citation Nr: 20034580 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 11-20 548 DATE: May 18, 2020 REMANDED The claim of entitlement to compensation for hepatitis C under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran had active service from July 1971 to August 1972. His claim comes before the Board of Veterans’ Appeal (Board) on appeal of an April 2010 Department of Veterans Affairs (VA) rating decision. In August 2015, the Board remanded this claim to the Agency of Original Jurisdiction (AOJ) for additional action. Entitlement to compensation for hepatitis C under the provisions of 38 U.S.C. § 1151 The Veteran asserts that he contracted hepatitis C as an employee at the Miami, Florida, VA Medical Center, where, from 2004 to 2005, he worked as part of a recovery program. His duties allegedly included delivering medical supplies, and collecting used medical equipment, which, unbeknownst to him, had not been sterilized and was contaminated, causing him to develop hepatitis C. He contends that he suspected he had been exposed when he listened to the news and learned there was an incident or “outbreak” at a VA Medical Center involving non-sterile equipment in the facility and department in which he worked. After being advised to obtain testing, a doctor rendered the diagnosis. He questions why, as part of his job, he was not trained in handling and transporting contaminated equipment. A claimant may be paid compensation under 38 U.S.C. § 1151 for a qualifying additional disability in the same manner as if such disability were service connected. There are two circumstances under which such compensation may be paid, provided the disability is not the result of the Veteran’s willful misconduct, including: (1) when it is caused by hospital care, medical or surgical treatment, or examination furnished either by a VA employee or in a VA facility; or, as relevant here, (2) when it is proximately caused either by the provision of training or rehabilitation as part of an approved rehabilitation program under 38 U.S.C. § 3.100 et seq. (chapter 31), or by participation in a compensated work therapy (CWT) program under 38 U.S.C. § 1718. 38 U.S.C. § 1151(a)(1), (2)(A), (B). Under 38 U.S.C. § 1151, the proximate cause of disability is the action or event that directly caused the disability as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). In August 2015, the Board remanded this claim to the AOJ for the purposes of verifying the Veteran’s participation in one of the programs mentioned in 38 U.S.C. § 1151, and obtaining an opinion as to whether, based on such participation, he had additional disability of hepatitis C or an aggravation of such condition. The AOJ complied with the initial instruction, thrice requesting verification. In December 2019, a VA Vocational Rehabilitation Counselor/Specialist finally replied that, from August 25, 2003 to April 25, 2005, the Veteran indeed participated in and performed various assignments for the Compensated Work Therapy (CWT) and Incentive Therapy (IT) program. Given this response, the next step was to obtain an opinion; however, the AOJ scheduled the Veteran for a VA examination, to which he failed to report. The opinion is still needed. The matter is therefore REMANDED for the following action: Transfer this case to a VA examiner for an opinion on the etiology of the Veteran’s hepatitis C. The examiner should review all pertinent documents of record, including: (1) service and post-service treatment records and a March 2010 VA examination report listing the Veteran’s various risk factors for developing hepatitis C, including, in part, tattoos, drug use, such as snorting cocaine and shooting up heroin (first noted at age 12), mild elevation in SGOT in 1989 (repeat normal 5 months later), a hepatitis C diagnosis in 2008, treatment for that condition beginning 2009, mildly elevated AST/ALT after the diagnosis; and (2) the Veteran’s assertions, noted above. The examiner should indicate when the Veteran’s hepatitis C initially manifested. The examiner should offer an opinion as to whether the Veteran’s work from August 25, 2003 to April 25, 2005, which allegedly involved delivering and collecting used, unsterilized, contaminated medical supplies and equipment, at least as likely as not (50 percent or greater probability) caused or aggravated his hepatitis C. The examiner should provide rationale for each opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N., Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.