Citation Nr: 21075982 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-03 069 DATE: December 22, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran's hepatitis C was caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision. The Veteran appeared at hearing before the undersigned in December 2016. A transcript of the hearing is of record. This matter was most recently before the Board in October 2020, when it was remanded to ensure compliance with prior directives related to obtaining an opinion regarding the Veteran's claim from an infectious disease specialist. The Agency of Original Jurisdiction (AOJ) obtained an adequate opinion from an infectious disease specialist in October 2021; therefore, there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis Under certain circumstances, VA provides benefits for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See generally 38 U.S.C. § 1151. For a claimant to qualify for such benefits, the additional disability must not be the result of the claimant's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to benefits when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a claimant has additional disability, VA compares the claimant's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the claimant's condition after such care, treatment, or examination is completed. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the claimant's additional disability or death. Merely showing that a claimant received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a claimant's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the claimant's additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the claimant's, or in appropriate cases, his or her representative's, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. 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 determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has incorporated the specific requirements of 38 U.S.C. § 1151 and its implementing regulations into a three-element test, whereby 1) a claimant must incur an additional disability that was not the result of his or her own willful misconduct; 2) the disability must have been caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility; and 3) the proximate cause of the additional disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or an event not reasonably foreseeable. See Viegas v. Shinseki, 705 F.3d 1374, 1377 (Fed. Cir. 2013). If all three elements under the Federal Circuit's test have been established, entitlement to compensation under 38 U.S.C. § 1151 is warranted. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has asserted that she contracted hepatitis C as a result of the use of contaminated instruments during a January 2008 abdominoplasty at the Detroit VA Medical Center. The record confirms the Veteran underwent of an abdominoplasty on January 2, 2008 at the Detroit VA Medical Center and was subsequently diagnosed as having hepatitis C after initially seeking treatment for symptoms on June 30, 2008. The Board finds the preponderance of evidence is against a finding that the Veteran's hepatitis C was caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility. VA initially obtained an opinion regarding the Veteran's claim in April 2013. The April 2013 VA examiner reported surgical records reveal the Veteran's January 2008 abdominoplasty was a routine procedure with no complications. The April 2013 VA examiner acknowledged the Veteran experienced a minor wound infection at the surgical site approximately fifteen days after the procedure but explained this type of infection is not suggestive of the use of contaminated instruments during the procedure, describing the Veteran's assertions in this regard as "pure conjecture." In September 2013, the Veteran submitted an opinion from a private physician, C.I., M.D., that indicates "[the Veteran's] hepatitis C was more likely than not caused by a previous surgery."; however, C.I., M.D., did not provide a rationale to support this conclusion or identify a specific surgery in the context of her opinion. In June 2019, the Board remanded this appeal for a new opinion addressing the Veteran's contention that the length of the hepatitis C incubation period, asserted to be one to six months, supports the conclusion that her hepatitis C was at least as likely as not caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility. The Board explicitly directed this opinion be obtained from an infectious disease specialist outside the Veterans Health Administration (VHA) given the nature of the Veteran's assertions; however, in May 2020, the AOJ obtained a negative opinion from a VA examiner with a specialty in general surgery rather than an infectious disease specialist as previously directed. As a result, the Board again remanded this appeal in October 2020, as previously noted, to ensure compliance with its prior remand directives. In October 2021, a non-VHA infectious disease specialist provided an opinion indicating the Veteran's hepatitis C was less likely than not caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility. The author of the October 2021 opinion, V.S., M.D., explained there is no evidence to support the Veteran's assertion that contaminated instruments or blood products were used during her January 2008 abdominoplasty at the Detroit VA Medical Center consistent with the previous April 2013 VA examiner's opinion. V.S., M.D., further explained the hepatitis C incubation period also fails to provide support for a conclusion that the Veteran's hepatitis C was at least as likely as not caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility. V.S., M.D., noted the incubation period for hepatitis C ranges from two weeks to six months but also noted the median incubation period for most patients is six to nine weeks, concluding the length of time between the alleged exposure in January 2008 and the hepatitis C diagnosis more than six months later is too long to support a causal relationship in the Veteran's case. The Board's finds the October 2021 opinion provided by V.S., M.D., to be the most probative evidence regarding the Veteran's claim, as it is based on an accurate factual history of the claimed disability and includes a well-articulated rationale to support the conclusions contained therein, which are directly responsive to the assertions the Veteran has raised to support her claim. The probative value of the October 2021 opinion provided by V.S., M.D., far outweighs the September 2013 opinion provided by C.I., M.D., which fails to identify a specific surgery or procedure and includes no rationale to support the conclusion provided, as well as the Veteran's unsubstantiated lay assertions regarding her claim. Although the Veteran is competent to report her medical history, she lacks the expertise or training to address complex medical questions such as the underlying cause of her hepatitis C. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the most probative evidence weighs against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran's appeal must be denied because the threshold requirement of actual causation has not been established in her case. See Viegas, 705 F.3d at 1377. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.