Citation Nr: 21015475 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-18 240 DATE: March 17, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for herpes resulting from a hemorrhoidectomy surgery performed at the VA Medical Center in Houston, Texas is denied. INTRODUCTION The Veteran had active service from October 1982 to September 1989 and January 1991 to May 1991. In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in October 2019 and October 2020 the above-noted issue was remanded for additional development. The case has since been returned for further appellate review. FINDING OF FACT The Veteran’s herpes infection did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for herpes are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The RO obtained a medical opinion from an Infectious Disease physician in August 2013, as well as an addendum medical opinion from that physician in May 2014. Additionally, the Board also obtained a comprehensive medical opinion from a second Infectious Disease physician in March 2020, as well as an addendum medical opinion from that physician in January 2021. Further, in October 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claim. Analysis of the Claim The Veteran has contended compensation benefits are warranted for herpes virus which was likely caused by contaminated instrumentation used during a January 10, 2012 hemorrhoidectomy procedure, as well as a sigmoidoscopy at the Houston VAMC. Shortly after the procedure, the Veteran, noted an open weeping sore at the site of her surgery, which caused her concern. At that time, she was continuing to experience hemorrhoids, as well as irritated skin. As such, she followed up with her treating doctor several days later on January 27, 2012. During her follow-up the physician noted evidence of focal koilocytic/HPV viral changes. She was advised to again follow up in 6 months. On June 15, 2012 the Veteran had a second follow-up assessment, where she tested positive for the herpes virus. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. See 38 U.S.C. § 1151; 38 C.F.R. § 3.358 (a). For claims, as here, filed on or after October 1, 1997, the Veteran must show that the VA treatment in question resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; see also VAOPGCPREC 40-97 (Dec. 31, 1997). In determining whether additional disability exists, the Veteran’s physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361 (b). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. See 38 C.F.R. § 3.361 (c)(1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the Veteran’s informed consent. See 38 C.F.R. § 3.361 (d)(1). Proximate cause may also be established where the Veteran’s additional disability was an event not reasonably foreseeable to be determined based on what a reasonable health care provider would have foreseen. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32 ). See 38 C.F.R. § 3.361 (d)(2). Determinations as to whether there was informed consent involve consideration of 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. 38 C.F.R. § 3.361 (d)(1). Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2014). In sum, for the Veteran to prevail in this matter, she must demonstrate the following: a) a “qualifying additional disability” that was not the result of her own “willful misconduct;” b) that her disability was directly “caused by hospital care, medical or surgical treatment, or examination furnished the veteran” by VA or in a VA facility; and c) that the “proximate cause” of her disability was the “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.” The evidence indicates the Veteran does have herpes, which was not detected prior to her January 2012 procedure at the Houston VAMC, and as such, for the purposes of this claim the Board acknowledges an additional disability. As such, the central issue that must be determined by the examiner in this case is whether the Veteran’s herpes infection was at least as likely as not (a 50 percent probability or greater) directly caused by that procedure. The Board acknowledges general statements regarding herpes outbreaks provided by the Veteran’s treating physician and nurse in December 2019, as well as statements provided by the Veteran in May 2012 and January 2013. In principle part, these statements indicate herpes outbreaks are often worse at the time of initial infection and become less severe as time passes. In sum, the Veteran asserts she did not previously experience any herpes outbreaks prior to her January 2012 procedure, and also underwent several normal PAP smear tests prior to that date. This, the Veteran asserts, demonstrates her infection was acquired during her January 2012 procedure. Additionally, the Veteran has provided evidence indicating cross contamination was shown to have occurred in several other VA facilities, leading to the adoption of new standard operating procedures. However, the Board finds the greatest probative evidence indicates the Veteran’s herpes infection was not directly caused by her January 10, 2012 hemorrhoidectomy/sigmoidoscopy procedure at the Houston VAMC. In this respect, the Board finds the two medical opinions provided by qualified Infectious Disease physicians, who both found the likelihood of herpes transmission during the above-noted procedure to be extremely low to be of the greatest weight in this case. In support of these conclusions, the August 2013 VA examiner noted the vast majority of people infected with HSV do not know they have the infection. Additionally, the examiner also noted the Veteran’s diagnosis of HPV, another sexually transmitted infection. In her May 2014 addendum, the physician found the likelihood of both viruses being acquired during her colonoscopy procedure to be very low. The March 2020 Infectious Disease specialist concurred with those finding. In particular, the physician explained HSV is a latent virus that may not manifest on initial infection. The physician also indicated the condition is known to reactivate after surgical procedures at or near the site of the surgery. The examiner explained that although fiberoptic scopes have been deemed a risk as a result of the difficulty cleaning those instruments, the evidence does not indicate a fiberoptic scope was actually used during the Veteran’s procedure, and the most likely instrument used at that time was a digital scope. Additionally, by way of an addendum medical opinion in January 2021, the physician concurred that the likelihood of both HSV and HPV transmissions occurring during the Veteran’s colonoscopy procedure would be low, and as such, her condition was likely acquired sexually in the past. The examiner explained that prior negative colonoscopies and PAP smears in the past would not have excluded her sexual acquisition of HSV. The Board has afforded these conclusions the greatest weight, because unlike the general statements provided by the Veteran’s treating physician and nurse, which do not assess the actual facts and circumstances of this particular case, the above-noted opinions fully considered the actual facts of this case. Moreover, these opinions were provided by Infectious Disease specialists, whose experience and training afford them greater ability to opine on this highly specialized medical issue. It is clear the Veteran sincerely believes she acquired herpes as a result of her January 10, 2012 hemorrhoidectomy/sigmoidoscopy procedure; however, the Board finds the greatest weight of the evidence indicates she less likely than not acquired this infection during that procedure. The Board appreciates the difficulties the Veteran has faced as a result of her herpes infection; however, the Board finds the evidence most likely indicates the condition was not acquired during her procedure at the Houston VAMC. In support of this conclusion, two separate medical opinions from Infectious Disease specialists have been provided. Both physicians concurred the likelihood was extremely low that both HSV and HPV infections would have been transmitted at the same time, and the risk of HSV infection from the procedure the Veteran underwent was extremely low. (Continued on the next page)   Therefore, the Veteran’s claim for entitlement to compensation under 38 U.S.C. § 1151 must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.