Citation Nr: 0002704 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-27 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis C due to blood transfusions received at a Department of Veterans Affairs Medical Center (VAMC). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from July 1953 to November 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating action of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA)-which denied compensation under 38 U.S.C.A. § 1151 for hepatitis C. The Board notes that, in his January 1997 claim, the veteran asked that his claim be considered both under the provisions of 38 U.S.C.A. § 1151 and as "an adjunct condition" to his service-connected disability. To date, the RO has not considered his claim on the basis of "secondary" service connection. See 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, this matter is referred to the RO for appropriate action. FINDING OF FACT There is no competent medical evidence suggesting the veteran developed hepatitis C due to blood transfusions received at a VAMC. CONCLUSION OF LAW The claim for benefits under 38 U.S.C.A. § 1151 for hepatitis C due to blood transfusions received at a VAMC is not well- grounded. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background In a June 1958 decision, the Board granted service connection for a duodenal ulcer. The claims folder includes medical records pertaining to treatment for that condition and documents numerous blood transfusions. In a November 1974 letter, the veteran's treating physician detailed a history of hospitalizations for treatment of the ulcer, noting 10 different hospitalizations from November 1956 to April 1973, during which the veteran received 29 pints of blood. Two of those hospitalizations, during which the veteran was noted to have received a total of 11 pints of blood, were at non-VA facilities. The remaining hospitalizations noted in that letter were at a VAMC. VA treatment records from 1956 to 1979 include records referable to treatment for the service-connected duodenal ulcer, including prior treatment at a non-VA facility during which the veteran received multiple blood transfusions. More recent medical evidence includes correspondence and reports from the University of Virginia Health Sciences Center, dating from 1994 through 1996. In a June 1994 letter, it was noted that, in January 1994, a routine physical examination had revealed elevated enzyme tests. Tests conducted in May 1994 also yielded elevated findings. Following additional testing, the impression was that the veteran probably had chronic hepatitis C. His history was noted to be significant for a long history of bleeding ulcers which required multiple blood transfusions, a tattoo in 1955 and no history of IV drug abuse. A September 1995 chart extract noted a diagnosis of hepatitis C, probably secondary to blood transfusions for bleeding duodenal ulcers versus tattoos. A September 1996 letter detailed protocols for therapy undertaken to treat the veteran's hepatitis C. In support of his claim, the veteran submitted a newspaper article which noted that people who received blood transfusions before 1990 were at risk for developing hepatitis C. II. Analysis In pertinent part, 38 U.S.C.A. § 1151 provides that, if a veteran suffers an injury or an aggravation of an injury as a result of VA hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and the injury or aggravation results in additional disability or death of the veteran, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. 38 C.F.R. § 3.358(a), 38 C.F.R. § 3.800(a) (1999). In determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the physical condition subsequent thereto. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the veteran was hospitalized and/or treated. 38 C.F.R. § 3.358(b)(1), (2). In addition, the regulations specify that the additional disability or death must actually result from VA hospitalization or medical or surgical treatment and not merely be coincidental therewith. In the absence of evidence satisfying this causation requirement, the mere fact that aggravation occurred will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.358(c)(1), (2). Finally, if the evidence establishes that the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, the additional disability or death will not be compensable, except to the extent regulations required evidence of negligence or other fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to benefits under 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.358(c)(3) (1994). That interpretation of the statute and regulations was invalidated by the United States Court of Appeals for Veterans Claims (Court)-formerly, the United States Court of Veterans Appeals-in the case of Gardner v. Derwinski, 1 Vet. App. 584 (1991). That decision was affirmed by both the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, in Brown v. Gardner, 513 U.S. 115 (1994). In March 1995, the Secretary published an interim rule amending 38 C.F.R. § 3.358 to conform to the Supreme Court decision. The amendment was made effective November 25, 1991, the date of the Gardner decision by the Court. 60 Fed. Reg. 14,222 (March 16, 1995). The interim rule was later adopted as a final rule, 61 Fed. Reg. 25,787 (May 23, 1996), and codified at 38 C.F.R. § 3.358(c) (1997). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude benefits in the absence of evidence of VA negligence or an unforeseen event. Pub. L. No. 104-204, § 422(a), 110 Stat. 2926 (1996); see also VAOPGCPREC 40-97 (Dec. 31, 1997). Since the veteran's claim was filed before October 1997, it must be adjudicated in accord with the earlier version of 38 U.S.C.A. § 1151 and the May 23, 1996, final regulation. Therefore, neither evidence of an unforeseen event nor evidence of VA negligence is required for this claim to be granted. The threshold question in this case is whether the veteran has presented evidence of a well-grounded claim. If not, the claim must fail, and there is no further duty to assist him in the development of his claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In fact, in a recent decision, the Court held that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). A well grounded claim requires more than an allegation, the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Thus, the essential elements needed to make a claim under Section 1151 plausible are competent (medical) evidence of additional disability or death of the veteran; medical evidence or, in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 12 Vet. App. 460 (1999). Evidentiary assertions by the claimant must be accepted as true for the purpose of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the claimant. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran alleges that he contracted hepatitis C as a result of blood transfusions administered at VA hospitals for treatment of his bleeding duodenal ulcer. The evidence of record includes a diagnosis of hepatitis C and reports detailing a history of blood transfusions-but, at both VA and non-VA facilities. The record also includes comments that, in determining the likely risk factors for hepatitis C, his history was significant for the multiple blood transfusions, as well as having a tattoo. However, that notwithstanding, there still is no competent medical evidence suggesting he contracted the hepatitis C as a result of the blood transfusions administered at the VAMC-as opposed to the multiple transfusions he also received at the non-VA facilities. Regarding the newspaper article submitted by the veteran, the Board notes that the only evidence pertinent to his own case is that relevant to a determination of whether he is entitled to benefits under 38 U.S.C.A. § 1151. An article noting "a risk" of contracting hepatitis C from blood transfusions performed prior to 1990 is not, in turn, tantamount to evidence of a medical nexus between the blood transfusions he received from VA-in this particular instance-and the eventual development of hepatitis C, especially since the VAMC was not the only source of his transfusions. The only nexus evidence in this case is in the veteran's own assertions. He has not presented any competent (medical) evidence in support of his claim. As a layperson, he is not competent to provide such evidence through his own opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Without competent evidence of a medical nexus between his currently demonstrated hepatitis C and VA treatment, his claim is not well grounded and must be denied. ORDER As evidence of a well-grounded claim has not been submitted, compensation under 38 U.S.C.A. § 1151-for hepatitis C due to blood transfusions received at a VAMC-is denied. KEITH W. ALLEN Acting Member, Board of Veterans' Appeals