Citation Nr: 21021303 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-45 093 DATE: April 12, 2021 ORDER Compensation under 38 U.S.C. § 1151 for hepatitis C is denied. FINDING OF FACT The preponderance of the evidence does not support that the Veteran’s hepatitis C was caused by a May 2004 colonoscopy at the Dallas VAMC. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for hepatitis C have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION 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 January 2021, the Board remanded the claim to obtain an adequate VA etiology opinion. As there has been compliance with the directives of that decision, the Board may now adjudicate the claim on the merits. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks compensation under 38 U.S.C. § 1151 for hepatitis C, which he contends is due to the use of unsterilized medical equipment during a colonoscopy at the Dallas VA Medical Center (VAMC). Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. To establish entitlement, there must be (1) medical evidence of a current disability; (2) evidence of incurrence or aggravation of an injury as the result of hospitalization or medical or surgical treatment; and (3) competent evidence of a nexus between that asserted injury or disease and the current disability. See Jones v. West, 12 Vet. App. 383 (1999). To determine whether a Veteran has additional disability, VA compares the Veteran’s condition immediately before the beginning of the medical care or examination to the Veteran’s condition after such care or examination. 38 C.F.R. § 3.361(b). When additional disability is caused by VA hospital care, VA medical or surgical treatment, or VA examination, the evidence must show that the proximate cause of the additional disability was either (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; 38 C.F.R. § 3.361. The record establishes that the Veteran underwent a colonoscopy at the Dallas VAMC in May 2004, and one year later the Veteran was diagnosed with hepatitis C in May 2005. The Veteran has stated that he has never used intravenous or intranasal drugs, never had a tattoo or piercing, has never had acupuncture, and has never shared or a used razor or toothbrush. He submitted a statement that his blood or percutaneous exposures included a blood transfusion, being stabbed five times, facial laceration, and airgun inoculations that were not wiped clean of blood after every use. A January 2005 treatment note remarked that the “most likely r[isk] f[actor] is nose crush injury in 1977 req[uir]ing surgery.” At a June 2008 VA examination relating to a claim for service connection for hepatitis C, the examiner stated that “the stab wound and immunization air gun can be ruled out as a cause [because] it would be highly unusual for the hepatitis C virus to present almost 40 years after the initial infecting episode.” In June 2009, the VA Inspector General (IG) issued a report following investigating of VA facilities that were the subject of media attention and 42 other randomly selected VHA facilities including the Dallas VAMC. The 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. In February 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran related that he had learned on the news about the incidents at VAMCs regarding improper sanitization procedures, which led him to file the present claim, and he reiterated that he did not have any other risk factors for hepatitis C. He emphasized that herbal supplements he took for his health could not have caused his hepatitis C. Across the appeal period, several VA opinions have been provided and subsequently found inadequate by the Board. This includes opinions that discussed a piece of evidence that has not been able to be associated with the record, as well as an opinion that attributed the Veteran’s condition to herbal supplements. As these opinions have been found inadequate, the Board will not consider them in adjudicating this claim. The Board’s most recent January 2021 decision directed for a new VA opinion, which was provided in February 2021. Based on review of the Veteran’s medical history and claims file, to include the Inspector General’s 2009 report, and medical literature, the clinician concluded that it is less likely than not that the Veteran’s hepatitis C was caused by the colonoscopy at the Dallas VAMC in 2004. Instead, the Veteran’s “case appears to be a sporadic case of hep[atitis] C not otherwise specified,” citing to a medical source finding a significant percentage of cases lacking identifiable risk factors. In the clinician’s opinion, the condition was more likely “due to a[n unspecified] mix or one of the non[-]colonoscopy events.” Moreover, based on the clinician’s interpretation of the record, he found that VA had not failed to exercise the degree of care that expected of a reasonable healthcare provider or otherwise acted carelessly, negligently, or without proper skill. Upon review of all the evidence of record, the Board finds that the January 2021 VA opinion is the most probative evidence regarding causation between the 2004 colonoscopy and the Veteran’s hepatitis C. The opinion was based on the clinician’s complete review of the Veteran’s medical history and claims file and application of medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (describing factors of probative value). The Board acknowledges the 2009 VA IG report rendering a broad finding that VAMCs had not ensured compliance with reprocessing of endoscopes, and that the report was based in part on a visit to the Dallas VAMC. However, the Board finds that the February 2021 VA opinion, which considered the specific details of the Veteran’s medical history and risk exposures, is of more probative value as to whether the 2004 colonoscopy caused the Veteran’s hepatitis C. See Nieves-Rodriguez, 22 Vet. App. at 304 (2008) (holding that probative value depends in part on application of medical principles to the specific facts of a Veteran’s case); see also Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding that probative value depends on consideration of the particular facts in the Veteran’s case). The Board acknowledges the Veteran’s own belief that his hepatitis C was caused by the colonoscopy at the Dallas VAMC in 2004, but the evidence of record does not establish that the Veteran has the education, training, or experience to opine on the etiology of his condition, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because the preponderance of the evidence is against the Veteran’s hepatitis C having been caused by the May 2004 colonoscopy at the Dallas VAMC, causation has not been shown. Thus, entitlement to compensation under 38 U.S.C. § 1151 for hepatitis C is not warranted. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c)(1); Jones v. West, 12 Vet. App. 383 (1999). 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.