Citation Nr: 21069582 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 09-15 438A DATE: November 18, 2021 REMANDED Compensation for hepatitis C under the provisions of 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1981 to January 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Agency of Original Jurisdiction (AOJ) that denied the Veteran's claim for compensation for hepatitis C under the provisions of 38 U.S.C. § 1151. In April 2019, the Board denied the Veteran's claim for compensation for hepatitis C under the provisions of 38 U.S.C. § 1151. In a December 2020 Memorandum Decision (Memorandum Decision), the United States Court of Appeals for Veterans Claims (Court) vacated the Board's April 2019 denial of the claim for compensation for hepatitis C under the provisions of 38 U.S.C. § 1151. This matter was most recently before the Board in May 2021, when it remanded the Veteran's claim in order to obtain an additional medical opinion pursuant to the guidance in the Memorandum Decision. While additional medical opinions were obtained in September 2021, the opinions contain conflicting findings that must be clarified before the Board may render a decision in this case. By way of history, a November 1995 test for the hepatitis C antibody was positive. In December 1995, a clinician noted that hepatitis panel testing was negative and assessed the Veteran with an abnormal liver profile of unknown etiology. A January 1996 abdominal sonogram conducted as a result of the abnormal liver profile was normal, and the Veteran was assessed with an abnormal liver profile that likely secondary to his use of Prozac. In June 1996, a clinician assessed the Veteran with an abnormal liver profile. A May 1997 punch biopsy of the Veteran's liver was positive for hepatitis C. July 1997 blood testing was positive for hepatitis C. In March 1998, a clinician noted that the Veteran had not returned for a follow-up liver biopsy following his July 1997 diagnosis with hepatitis C. An April 1998 biopsy showed mild chronic hepatitis C with stage 1 fibrosis. The Veteran claims he suffered additional disability as the result of VA's failure to inform him until 1998 that he had been diagnosed with hepatitis C in 1995. The existing medical opinions are in conflict as to when the Veteran was actually diagnosed with hepatitis C. Notably, in a September 2009 opinion that the Memorandum Decision has found to be inadequate, the examiner indicated that the Veteran's date of diagnosis with hepatitis C was sometime after the Veteran's 1995 normal liver panel testing and before the Veteran's formal diagnosis with hepatitis C in 1998. The Board remanded the Veteran's claim to obtain an additional medical opinion pursuant to the guidance in the Memorandum Decision. In September 2021, a VA examiner (Dr. F.M.S.) found that it was less likely than not that the Veteran developed additional disability as a result of VA's treatment, or failure to provide treatment, for hepatitis C. The examination report set forth the Veteran's medical history, including the November 1995 positive hepatitis C antibody test, a negative hepatitis panel from December 1995, a December 1995 notation that the Veteran had an abnormal liver profile of unknown etiology, the Veteran's ultimate diagnosis with hepatitis C in 1997, and 1998 needle biopsy testing showing mild chronic hepatitis with minimal portal fibrosis. The examiner noted that fibrosis is a common complication of liver infection as a result of an inflammatory reaction. Therefore it was less likely than not that the Veteran developed additional disability as a result of VA's treatment, or failure to provide treatment, for hepatitis C. In a separate September 2021 opinion, a different VA examiner (Dr. A.M.) made a finding that was contrary to Dr. F.M.S.'s rationale. Dr. A.M. found that the Veteran's December 1995 blood work indeed diagnose the Veteran with hepatitis C. Dr. A.M. did not offer an opinion as to whether the Veteran developed additional disability as a result of VA's treatment, or failure to provide treatment, for hepatitis C. Dr. A.M.'s assertion that the Veteran was diagnosed with hepatitis C in 1995 conflicts with the finding of Dr. F.M.S. that the Veteran was diagnosed with hepatitis C in 1997. An additional opinion addressing the Veteran's claim is required in order to clarify this conflicting medical evidence. This matter is REMANDED for the following actions: Solicit the following opinions from an examiner of expertise in the treatment of hepatitis C, to include the appropriate standard of care in treating such disability. This opinion should be requested from a clinician other than the examiners who offered the September 2021 opinions (Drs. F.M.S. and A.M.). If the requested opinions cannot be provided without an examination, one should be scheduled. Following a review of the Veteran's claims file, the examiner should address the following questions, in each case considering not only the pertinent medical evidence of record, but also the Veteran's lay statements. (a.) When was the Veteran first diagnosed with hepatitis C? The examiner should address the significance of the positive November 1995 test for hepatitis C antibodies and the December 1995 negative hepatitis panel testing and diagnosis with an abnormal liver profile of unknown etiology. The opinion should additionally address the September 2021 finding of Dr. A.M. that the Veteran was diagnosed with hepatitis in 1995. (b.) Is it at least as likely as not (50 percent likelihood or greater) that the Veteran developed an additional disability as a result of VA's treatment, or failure to provide treatment, for hepatitis C between 1995 and 1998? The examiner should provide a full rationale for this conclusion, addressing all pertinent evidence of record, including the relevance of a November 1995 blood test that was positive for hepatitis C antibodies. (c.) If an additional disability is found, was the additional disability caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in providing the Veteran's treatment, or failing to provide such treatment, for hepatitis C from 1995 to 1998? The examiner should provide a full rationale for this conclusion, addressing all pertinent evidence of record. The examiner's rationale should address the pertinent standard of care, and the significance, if any, of VA's failure to conduct additional testing after a November 1995 positive test for hepatitis C antibodies, a December 1995 negative hepatitis C test, and a January 1996 abnormal liver profile. (d.) If an additional disability is found, was the additional disability an event not reasonably foreseeable? Such event need not be 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 that the Veteran received between 1995 and 1998. The examiner must also discuss the extent to which VA failed to exercise the degree of care that would be expected of a reasonable health care provider, if at all. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.