Citation Nr: 21002046 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-45 093 DATE: January 12, 2021 REMANDED Entitlement to compensation under 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 before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a lengthy appeal history, the most recent Board decision remanded the claim in September 2020 for a new VA opinion. Though a new VA opinion was obtained, the Board finds it is inadequate, and therefore further remand unfortunately is required. The Veteran’s contention is that he contracted hepatitis C due to unsterilized medical equipment being used during a colonoscopy at the Dallas VA Medical Center (VAMC). The Veteran underwent the colonoscopy in May 2004 and was diagnosed with hepatitis C in May 2005. He later saw a media report that Veterans had contracted disease due to improper sterilization procedures at VA facilities. In light of the media reports, a June 2009 report was prepared by the VA Inspector General (IG) investigating the facilities that were the subject of media attention and visiting 42 other randomly selected VHA facilities, which included the Dallas VAMC. The June 2009 IG report concluded that “[f]acilities have not complied with management directives to ensure compliance with reprocessing of endoscopes, resulting in a risk of infectious disease to veterans”; the report did not make any findings specific to the Dallas VAMC. Prior Board decisions have remanded the matter for attempts to obtain a Dallas VAMC internal report that reviewed the Dallas VAMC’s procedures for colonoscopies, a report which was first referenced in a December 2009 VA examination. Proper efforts were undertaken by the RO to try to obtain that report, but it was ultimately formally found to be unavailable, as noted in the Board’s most recent September 2020 decision. Since the Dallas VAMC internal report is not part of the record, the Board’s September 2020 decision remanded for a new VA opinion that was not at all based on the information purportedly in the internal report. Following the Board’s September 2020 decision, a new VA opinion was issued in September 2020. The examiner opined that the Veteran did not contract hepatitis C as a result of the May 2004 colonoscopy but rather contracted the disease due to taking herbal supplements. This opinion was based on an August 2005 VA medical record that stated the Veteran “was on multiple herbal meds [for over] 10 y[ea]rs (saw palmetto, gotu kola, bilberry & newton, lycopene, gingko, vinpocetine, grapeseed, lipoic acid & multiple others).” However, the August 2005 record also noted the “[o]verall impression was an acute insult on liver due to herbal meds superimposed on underlying HCV that p[atien]t was unaware of,” and the September 2020 clinician herself stated “according to the medical record, the Veteran . . . had underlying HCV.” (Emphases added.) Thus, the Board finds the September 2020 VA opinion inadequate for two reasons. First, the clinician did not offer any reasoning or evidentiary support for a link between the herbal supplements the Veteran took and hepatitis C, and the opinion does not address the Veteran’s testimony that the information he received from VA after being diagnosed with hepatitis C reflected that hepatitis C can only be contracted through exposure to blood or other bodily fluids. Second, the September 2020 examiner’s opinion did not conclusively address whether the Veteran’s underlying hepatitis C—independent of the acute liver condition in May 2005 that may or may not have been related to herbal supplements—was sustained due to the May 2004 colonoscopy at the Dallas VAMC. As there is not an adequate opinion regarding whether the Veteran’s hepatitis C was due to the May 2004 colonoscopy at the Dallas VAMC, the Board must remand for a new opinion. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: (This appeal has been advanced on the docket. Expedited handling is requested.) 1. Associate with the Veteran’s claims file any VA treatment records not already of record. 2. Obtain an opinion regarding the Veteran’s section 1151 claim for hepatitis C. If the author of the September 2020 opinion is available, obtain the opinion from her. The clinician must answer all of the following: a. Is it at least as likely as not that the Veteran contracted hepatitis C as a result of the May 2004 colonoscopy at the Dallas VA Medical Center? b. If the Veteran’s underlying hepatitis C, or any other disability, was a result of the May 2004 colonoscopy, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing hospital care or medical or surgical treatment? c. Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? d. Was contracting hepatitis C an event not reasonably foreseeable as a result of undergoing a colonoscopy (i.e., the type of risk that a reasonable health care provider would not have disclosed as a potential risk of the Veteran’s treatment as part of informed consent procedures)? In rendering these opinions, the clinician must directly address the Veteran’s underlying hepatitis C, as referred to in the August 2005 VA medical note and as noted by the September 2020 clinician. The clinician should take into account a June 2009 report by the VA Inspector General that concluded VA “facilities have not complied with management directives to ensure compliance with reprocessing of endoscopes, resulting in a risk of infectious disease to veterans.” It is noted that the report was based in part after visiting the Dallas VA Medical Center at which the Veteran underwent the May 2004 colonoscopy, although the report made no findings regarding the practices specifically at the Dallas VAMC. (The clinician is reminded to NOT take into account an internal report of the Dallas VAMC regarding this topic.) The clinician must provide rationale to support his or her opinion. If the clinician concludes that the Veteran’s hepatitis C was related to taking herbal supplements, authority supporting this connection should be included in the opinion. The clinician should consider and discuss the information that the Veteran received regarding that hepatitis C is contracted only by transmission through blood or other bodily fluids. (Continued on the next page)   3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, Associate 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.