Citation Nr: 21029857 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-15 438A DATE: May 17, 2021 REMANDED Entitlement to 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. The claim has now returned to the Board. The Board notes that its April 2019 decision additionally remanded the issues of entitlement to service connection for GERD and a sinus condition. In July 2020, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal, on each issue, electing direct review under the Appeals Modernization Act (AMA); therefore, those issues will be decided by the Board separately as appropriate. Compensation for Hepatitis C Under the Provisions of 38 U.S.C. § 1151 The Board must remand the claim of entitlement to compensation for hepatitis C under the provisions of 38 U.S.C. § 1151 in order to comply with the guidance in the Court's Memorandum Decision. The Memorandum Decision vacated the Board's April 2019 denial of the Veteran's claim, finding that it relied on an inadequate September 2009 opinion, with an October 2009 addendum. The Memorandum Decision identified three primary deficiencies in these opinions. First, the opinions concluded that the results of a 1995 blood test were presumably negative for hepatitis C without addressing the relevance of a November 1995 blood test that was positive for hepatitis C antibodies. Second, the opinions concluded that there was no evidence of negligence, carelessness, lack of proper skill, error in judgment, or similar instance of fault on VA's part Such conclusions were, however, inadequate because they failed to discuss either the appropriate standard of care, or the significance 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. Third, the examiner's conclusion that the Veteran did not suffer "any appreciable increase in damage" employed an incorrect legal standard to determine whether the Veteran experienced additional disability as the result of VA medical care. As such, a remand is required in order to obtain a medical opinion consistent with the guidance in the Court's December 2020 Memorandum Decision. The matters are 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. 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.) 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 from 1995 to 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. (b.) 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. (c.) 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. Amanda Christensen Acting 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.