Citation Nr: 20058587 Decision Date: 09/03/20 Archive Date: 09/03/20 DOCKET NO. 10-45 093 DATE: September 3, 2020 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1964 to August 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, the Veteran testified via video conference from the RO before the undersigned. In April 2014, the Board remanded the claim for additional development. The Board once again remanded this matter in May 2017 for further development. As will be discussed in greater detail below, this matter must once again be remanded for additional development. In its May 2017 remand, the Board noted that the Veteran contended that when he underwent a colonoscopy at the Dallas VA Medical Center in May 2004, unsterile instruments were used which caused him to contract hepatitis C. The Board indicated that VA medical records confirmed that he had a colonoscopy in May 2004 and that he was diagnosed with hepatitis C the following year. The Board observed that in a December 2009 VA medical opinion, the examiner noted that cases of hepatitis C from the use of unsterilized equipment had been reported at VA facilities, but not at the Dallas VA Medical Center. The examiner cited to an internal review from the Dallas VA Medical Center as well as a review by the Inspector General’s (IG) office. However, neither of these reports were initially included with the medical opinion or elsewhere in the record. The Board further noted that pursuant to the April 2014 Board remand, the AOJ attempted to obtain the reports cited. It was noted that the provider “is no longer here.” Ultimately, a negative reply was noted regarding the internal review from the Dallas VA Medical Center. The Board stated that it was unclear whether the report was requested from the VA examiner, Dr. J. Y., who cited to the review in providing his opinion. Thus, additional efforts were warranted in obtaining the cited internal review, if available. The Board also noted that the IG report was obtained and associated with the record. It observed that the December 2009 VA examiner stated that there were no findings to suggest that there were any deficiencies in sterilization or that any patients had come to harm. The Board further noted that according to the IG report, the VA North Texas Health Care System, Dallas VA Medical Center was one of the VHA facilities which underwent unannounced inspection for the study. The Board observed that the conclusion of the IG report stated that facilities had not complied with management directives to ensure compliance with processing of endoscopes resulting in a risk of infectious disease to veterans. However, there was no specific data provided for the Dallas VAMC itself. As such, it remained unclear whether or not unsterile instruments were used at the Dallas VAMC which caused the Veteran to contract hepatitis C. The Board requested that the RO conduct necessary development (to include contacting the December 2009 VA examination provider) to obtain a copy of the report of the Dallas VA Medical Center concerning the use of unsterilized equipment during colonoscopies and the lack of such a practice at this VA facility. If it was determined that the report was unavailable, a memorandum of unavailability was to be prepared with what development efforts were made. The Board further requested that after the above development had been completed to the extent possible, or after the time for a response had expired, forward the entire record to the December 2009 VA examiner, or a suitable substitute, for an addendum opinion concerning whether unsterile instruments were used during the colonoscopy at the Dallas VA Medical Center in May 2004, which caused the Veteran to contract hepatitis C. The Board indicated that after a complete review of the file, the examiner should answer all of the following questions with a full rationale provided for each answer: (1) Did the Veteran sustain any additional disability, to include hepatitis C, as a result of the May 2004VA colonoscopy? If so, what was that additional disability? (2) If such additional disability was sustained, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (3) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (4) Was the proximate cause of any additional disability an event not reasonably foreseeable? Complete rationale was to be provided for any opinions expressed. In conjunction with the remand, a VA examination was performed and a medical opinion was obtained in March 2020. The 2009 examiner was not available. The March 2020 VA examiner indicated that it was less likely than not that the claimed disability of hepatitis C was caused by or became worse as a result of the VA treatment at issue; the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or; failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner indicated that an investigation was performed at the VA in Dallas and it was found that the endoscopes were not contaminated with Hepatitis C. The examiner also indicated that the Veteran did not sustain any additional disability, to include Hepatitis C, as a result of the May 2004 VA colonoscopy. She stated that the colonoscopy procedures were investigated by the Inspector General. The investigators concluded that the standards of care were maintained during the procedure. She further noted that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider. She stated that an investigation was performed at the VA in Dallas and it was found that the endoscopes were not contaminated with Hepatitis C. She indicated that the colonoscopy procedures were investigated by the Inspector General and the investigators concluded that the standards of care were maintained during the procedure. She stated that the cause of the Hepatitis C was unknown, however, it was not attributable to the VA or the May 2004 procedure. She again indicated that an investigation was performed at the VA in Dallas and it was found that the endoscopes were not contaminated with Hepatitis C. The colonoscopy procedures were investigated by the Inspector General and the investigators concluded that the standards of care were maintained during the procedure. With regard to the requested record development, the RO, in an August 2020 memorandum, indicated that the report requested in the May 2017 remand was not available, after multiple attempts to get the report. It did obtain the IG report, but not the internal VAMC report. All reasonable attempts to obtain the report, as there were no procedures specific for obtaining internal VAMC reports, had been attempted and further attempts were futile. Based on these facts, the report was not available. The following efforts to obtain the internal report were attempted: Filed a 7131 request for the report on 12/13/2019; filed another 7131 request, specifically requesting the internal report on 03/27/2020; attempted to call and obtain the records from the VAMC on 07/17/2020; e-mailed the Chief Health Information Management (HIM)and Release of Information (ROI) officers, requesting the internal report. It noted that evidence of written efforts to obtain the report were on file. All efforts to obtain the needed internal report had been exhausted. Any further efforts without additional information were futile. It stated that considering these facts, the internal record was not available. While the Board notes that the requested development was performed, the Board finds the medical opinion is not based upon evidence in the record. Although the examiner indicated that the colonoscopy procedures were investigated by the Inspector General and the investigators concluded that the standards of care were maintained during the procedure, such is not the case based upon the evidence of record. The IG report of record, while noting that the IG Office had done an unannounced visit to this facility, did not make any findings with regard to whether the Dallas VAMC had violated any standards of care. As noted in the prior remand, the conclusion of the IG report stated that facilities had not complied with management directives to ensure compliance with processing of endoscopes resulting in a risk of infectious disease to veterans. However, there was no specific data provided for the Dallas VAMC itself. As such, the examiner’s opinion is based upon a faulty premise. Moreover, while the December 2009 examiner noted that cases of hepatitis C from the use of unsterilized equipment had been reported at VA facilities, but not at the Dallas VA Medical Center, and cited to an internal review from the Dallas VA Medical Center as well as a review by the Inspector General’s (IG) office, the internal review report, if one had existed at some point, is not available for review, having been found to be unavailable in the August 2020 memorandum. The March 2020 examiner, when rendering her opinion, noted that an investigation was performed at the VA in Dallas and it was found that the endoscopes were not contaminated with Hepatitis C. Again, this information is not contained in the file for review. Given the discrepancy between the March 2020 examiner’s opinion and the evidence of record, particularly with regard to the findings of the Inspector General report and the absence of any internal investigation report, an additional opinion is required. The matter is REMANDED for the following action: If available, return the claim folder to the March 2020 VA examiner. Following a review of the file, the examiner is requested to render the following opinions: (1) Did the Veteran sustain any additional disability, to include hepatitis C, as a result of the May 2004 VA colonoscopy? If so, what is that additional disability? (2) If such additional disability was sustained, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (3) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (4) Was the proximate cause of any additional disability an event not reasonably foreseeable? When rendering this opinion, the examiner, as it relates to reports of record, is to address only the contents contained in the June 2009 IG report. Attention is drawn to the findings in the IG report that while the Dallas VAMC was noted to have undergone an unannounced inspection, the report did not contain specific findings related to the Dallas VAMC. The IG report also contains findings that that some VA facilities had not complied with management directives to ensure compliance with processing of endoscopes resulting in a risk of infectious disease to veterans. The examiner should also not make any reference to internal review findings from the Dallas VA Medical Center as that report is not of record. Complete rationale is to be provided for any opinions expressed. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.