Veteranclaims’s Blog

November 18, 2015

Ollis v. McDonald, No. 14-1680(Argued August 18, 2015 Decided October 28, 2015);38 U.S.C. § 1151(a)(1);

Filed under: Uncategorized — Tags: — veteranclaims @ 6:29 pm

Excerpt from decision below:

“GREENBERG, Judge, dissenting: I dissent. The majority’s application of 38 U.S.C. § 1151
is unduly narrow and withdraws necessary protections from a rapidly growing class of veterans.
The Board determined that the appellant was not eligible for benefits based on his phrenic
nerve paralysis because that disability was not “caused by hospital care, medical or surgical
treatment, or examination furnished the veteran under any law administered by the Secretary, either
by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title.”
38 U.S.C. § 1151(a)(1). The majority holds that the Board did not err in its reasoning, because
“section 1151 does not extend to the ‘remote consequences’ of VA medical treatment.”9
When a veteran’s doctor recommends a course of treatment, it is not a remote consequence
of that recommendation for the veteran to pursue it.”

====================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-1680
PAUL L. OLLIS, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued August 18, 2015 Decided October 28, 2015)
Paul M. Schoenhard, of Washington, D.C., with whom Samuel L. Brenner, of Boston,
Massachusetts, was on the brief, for the appellant.
Mark D. Vichich, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant
General Counsel; and Drew A. Silow, Acting Deputy Assistant General Counsel, were on the brief,
all of Washington, D.C., for the appellee.
Before KASOLD, PIETSCH, and GREENBERG, Judges.
KASOLD, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
opinion.
KASOLD, Judge: Veteran Paul L. Ollis appeals through counsel1 that part of an April 1,
2014, Board of Veterans’ Appeals (Board) decision that denied his claim for benefits under 38 U.S.C.
§ 1151 for a cardiac disability and phrenic nerve paralysis. Mr. Ollis argues that the Board erred in
finding that a VA doctor’s advice and recommendations regarding a medical procedure, which
ultimately was performed in August 2007 by a non-VA employee in a non-VA facility, fell outside
the scope of section 1151. A panel decision is warranted to address this issue of first impression.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of
the decision on appeal will be affirmed.
I. BACKGROUND
1 Mr. Ollis filed his Notice of Appeal and initial brief pro se but obtained counsel prior to supplemental
briefing.
Mr. Ollis served on active duty from June 1975 to March 1976. In 1997, he was diagnosed
with atrial fibrillation.2 In order to resolve daily episodes of dizziness, light-headedness, and
faintness, he underwent an ablation procedure3 in March 1999 at the Nashville VA medical center
(VAMC) and received a pacemaker in July 1999. Throughout the next decade, however, the
episodes continued. During this time, Mr. Ollis received medical treatment from the Nashville
VAMC, and also from his private cardiologist, Dr. Stephen Teague of Parkway Cardiology, who
began seeing Mr. Ollis as early as September 2000.
In June 2007, Mr. Ollis visited the Nashville VAMC for a pacemaker interrogation.4 As
recorded in the medical progress notes, Mr. Ollis informed a VA nurse practitioner that he had
experienced another episode in January 2007 and had follow-up with Parkway Cardiology.5 Mr.
Ollis expressed a desire not to go through the ablation procedure again and inquired about MAZE6
treatment for his atrial fibrillation. The VA nurse practitioner explained that such a procedure was
not performed at the Nashville VAMC, but she noted that she would ask Dr. Jeffrey Rottman, also
of the Nashville VAMC, to review Mr. Ollis’s record and make further recommendations. Seven
days later, Dr. Rottman reviewed Mr. Ollis’s record and stated in the medical progress notes that,
“[s]ur[gi]cal MAZE is one avail[a]ble option. The epicardial MAZE would be the current
preference. While this is not available at the VA (specialized operators and equipment are required),
it could be performed at other local institutions. Recommendations provided.” Record (R.) at 1318.
2 “Atrial fibrillation” is “an arrhythmia in which minute areas of the atrial myocardium are in various
uncoordinated stages of depolarization and repolarization due to multiple reentry circuits within the atrial
myocardium . . . causing a totally irregular, often rapid ventricular rate.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 701 (32d ed. 2012) [hereinafter DORLAND’S].
3 This procedure delivers electrical energy through a catheter to cut away at the heart tissue causing the atrial
fibrillation. See DORLAND’S at 3-4.
4 A “pacemaker interrogation” measures the functioning and battery status of a pacemaker. See Record (R.)
at 1316-17.
5 The record reflects that this follow-up was with Dr. Teague. See R. at 403, 404.
6 “Maze” procedure is the “surgical division of the normal conduction pathways between the sinoatrial node
and the atrioventricular node by a series of incisions in the left atrium to create a maze of conduction pathways; its
purpose is to allow a normal impulse to activate the atrium while eliminating macroreentrant circuits; done for the relief
of atrial fibrillation.” DORLAND’S at 1517.
2
In July 2007, Mr. Ollis visited Dr. Teague to discuss the surgical and medical approaches to
atrial fibrillation. Dr. Teague’s progress note does not mention any VA recommendation or referral.
Rather, the progress note reflects that the discussion “comes on the heels of a recent pacemaker
interrogation,” that Mr. Ollis wanted to talk directly to Dr. William Hall of Methodist Medical
Center (MC) regarding the surgical approach, and that “[Mr. Ollis] will be referred.” R. at 405. Dr.
Teague also suggested that Mr. Ollis “may wish to discuss the situation with Dr. Ro[tt]man.” Id.
There is no indication from the record that Mr. Ollis followed up on this suggestion prior to the
August 2007 surgery.
Three weeks after Mr. Ollis visited Dr. Teague, another private physician, Dr. Hall, evaluated
Mr. Ollis for the surgical MAZE procedure. In his progress note, Dr. Hall thanked Dr. Teague for
“asking us to see this patient.” R. at 87. The progress note does not mention a VA recommendation
or referral. Subsequently, in August 2007, Dr. Hall performed the surgery at Methodist MC, which
was paid for by Mr. Ollis and his private insurance company. See R. at 480. For purposes of this
opinion, it is assumed that Mr. Ollis’s right phrenic nerve was damaged during the procedure and that
his cardiac issues resumed following the surgery.
In July 2008, Mr. Ollis filed for VA benefits for his disabilities related to the August 2007
MAZE procedure. He stated that the procedure was performed at Methodist MC, “where the VAMC
Nashville, Heart Department, referred me.” R. at 1395. Throughout his administrative appeal, Mr.
Ollis argued that VA should be held liable for the treatment he received as a result of VA’s referral
or recommendation. See, e.g., R. at 862 (Mr. Ollis stating in 2009 Notice of Disagreement that his
condition was “the result of treatment received from VA refer[r]ed care”), 851 (Mr. Ollis stating in
2009 letter to VA Nashville regional office that VA should be held “responsible for my condition
based on [a] referral” from Dr. Rottman to Parkway Cardiology), 496 (Mr. Ollis stating in 2011
Substantive Appeal that “VA should be held liable for the treatment that caused the injury”), 484
(Mr. Ollis stating “Yes” in his 2011 Board hearing in response to hearing officer’s question: “Your
argument is that while it wasn’t done at a V.A. facility, it was done upon the recommendation of
V.A., correct?”).
The Board decision on appeal addressed Mr. Ollis’s argument and rejected it. The Board
found that VA’s Dr. Rottman had recommended the MAZE procedure as one option to treat atrial
3
fibrillation but that the procedure was ultimately performed at a non-VA facility by a non-VA
employee. The Board found “no evidence that VA required the private provider to act on it[s]
behalf,” or that VA supervised or had a contract with Dr. Hall. R. at 19. The Board concluded that
the facts of Mr. Ollis’s case fell outside the scope of section 1151.
II. THE PARTIES’ ARGUMENTS
In his initial pro se brief, Mr. Ollis (1) notes that VA’s Dr. Rottman provided
“recommendations of facilities to perform this [MAZE] procedure,” and that Mr. Ollis himself
“chose a facility that was close to home and family,” (2) contends that he “was never instructed at
any time by VA about the consequences of having this [procedure] performed without a referral from
them,” and (3) asks the Court “to consider the recommendations as a verbal referral.” Appellant’s
(App.) Brief (Br.) at 3-4.
Upon obtaining counsel, Mr. Ollis argues that (1) the medical advice and recommendations
of VA’s Dr. Rottman constituted VA medical treatment that was causally connected to his claimed
disabilities, and (2) the record was not fully developed on several issues of proximate cause; i.e.,
whether VA personnel advised Mr. Ollis of the risks of the procedure or whether the disabilities were
not reasonably foreseeable, and whether VA personnel failed to investigate the credentials and
capabilities of the recommended doctors such that the recommendation or referral was negligent.
Mr. Ollis additionally argues that, when a VAMC cannot perform a procedure, VA has a statutory
and constitutional duty to inform a veteran that procedures performed at a non-VA facility might
affect section 1151 eligibility. See App. Supplemental (Supp.) Br. at 11-17 (citing, inter alia, 38
U.S.C. § 6303(c) and Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)).7
The Secretary argues that section 1151 is limited by its plain language to medical procedures
performed “by a Department employee or in a Department facility,” 38 U.S.C. § 1151(a)(1), and that
the MAZE procedure here was performed by a private doctor, Dr. Hall, in a private facility.
Alternatively, the Secretary asserts that Mr. Ollis’s disability was not caused by any VA treatment;
Mr. Ollis also contends in his supplemental 7 brief that section 1151 should not be interpreted in a way that
creates a perverse incentive for VA to refer or recommend veterans to non-VA facilities in order to avoid section 1151
awards. Succinctly stated, he fails to demonstrate that the denial of medical services in his case was so motivated, and
we find no basis for presuming that VA personnel might be perversely motivated to refer patients for non-VA care to
avoid section 1151 awards. Other than this notation, we do not further address Mr. Ollis’s unfounded suggestion.
4
rather, Mr. Ollis visited another private physician, Dr. Teague, on his own initiative – not based upon
a VA referral – and then underwent the surgery by Dr. Hall based on Dr. Teague’s referral. The
Secretary additionally contends that any medical advice or recommendation by VA’s Dr. Rottman
was too attenuated to Mr. Ollis’s postsurgery disabilities to be considered their cause. Finally, the
Secretary contends that there is no statutory or constitutional right to information about section 1151
when a VAMC cannot perform a procedure.
III. ANALYSIS
A. Section 1151 and Causation
“Section 1151 delineates three prerequisites for obtaining disability compensation.” Viegas
v. Shinseki, 705 F.3d 1374, 1377 (Fed. Cir. 2013). First, the claimant must demonstrate a current
disability that is not the result of his own willful misconduct. Second, the disability must have been
“caused by hospital care, medical or surgical treatment, or examination furnished the veteran under
any law administered by the Secretary, either by a Department employee or in a Department facility.”
38 U.S.C. § 1151(a)(1). Third, the “proximate cause” of the disability must be negligence “or similar
instance of fault on the part of [VA]” or “an event not reasonably foreseeable.” § 1151(a)(1)(A)-(B).
The Board determined that the facts here did not meet the second requirement (causation)
for section 1151 compensation. The Board explained that VA’s Dr. Rottman had recommended the
MAZE procedure as one available option but that the procedure was ultimately performed – and the
disabilities sustained – at a private facility by a private doctor, with no evidence of any contract or
relationship between VA and that private doctor. Thus, the Board found that the disabilities were
not “caused by a Department employee or in a Department facility.” R. at 20.
On appeal, Mr. Ollis disputes this finding. He asserts that the medical advice and
recommendations from VA’s Dr. Rottman constituted medical treatment that caused Mr. Ollis to visit
Dr. Teague, who then referred Mr. Ollis to Dr. Hall, who performed the surgery that resulted in the
disabilities. Otherwise stated, Mr. Ollis contends that Dr. Rottman’s actions “‘gave rise to the risks
out of which the injury arose,'” and therefore were a cause of the disabilities. App. Supp. Br. at 6
(quoting VA Gen. Couns. Prec. 7-97, at 7-8 (Jan. 29, 1997) (citing O’Leary v. Brown-Pacific-Maxon,
Inc., 340 U.S. 504 (1951))).
At the outset, we note that Mr. Ollis’s argument that VA’s Dr. Rottman “caused” Mr. Ollis
5
to seek treatment from Dr. Teague or Dr. Hall, both private physicians, was not raised below by Mr.
Ollis or otherwise reasonably raised by the record before the Secretary and the Board, and we find
no error in the Board’s not addressing this issue. See Robinson v. Peake, 21 Vet.App. 545, 552
(2008) (Board must address all issues raised by the claimant or reasonably raised by the record), aff’d
sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Nevertheless, this argument presents
a novel issue and we find the argument well formed and worthy of consideration. See Maggitt v.
West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (holding, inter alia, that the Court has discretion to hear
legal arguments for the first time on a claim properly before the Court).
To understand section 1151’s causation requirement, it is important to review the evolution
of the current statutory language, binding caselaw addressing this language, and general views of
causation in federal practice. Before 1996, section 1151 required that a current disability be “the
result of hospitalization, medical or surgical treatment . . . under any of the laws administered by the
Secretary” and “not the result of willful misconduct.” In Brown v. Gardner, 513 U.S. 115, 119
(1994), the Supreme Court held that such language did not require a showing of fault by the VA;
rather, the language “simply [ ] impose[d] the requirement of a causal connection between” the
disability and the VA treatment.
In 1996, Congress amended the statute, adding a requirement that the disability be
proximately caused by VA fault or an event not reasonably foreseeable. The primary purpose of the
amendment was to add the element of VA fault to section 1151. See Bartlett v. Shinseki,
24 Vet.App. 328, 330 n.2 (2011) (citing, inter alia, 142 CONG. REC. S9932 (daily ed. Sept. 5, 1996)).
Congress also replaced the phrase “the result of” with “caused by,” but the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) has noted that this change “does not appear to have been a
substantive change.” Viegas, 705 F.3d at 1382 n.5.
Addressing the “caused by” language in Viegas, the Federal Circuit rejected the Secretary’s
position that this language requires a disability to be “directly caused by” VA medical treatment, but
also rejected a broader view proposed by the appellant. See id. at 1378. The Federal Circuit invoked
Gardner, held that section 1151 requires “only a ‘causal connection'” between the disability and VA
treatment, id. at 1380 (quoting Gardner, 513 U.S. at 119), and further held that section 1151 “does
not extend to the ‘remote consequences'” of VA medical treatment. Id. at 1383.
6
The notion that section 1151’s causation requirement – even before the separate “proximate
cause” requirement was added to the statute – does not extend to remote consequences of VA
conduct accords with the prevalent practice throughout the federal courts. Although “‘[i]n a
philosophical sense, the . . . causes of an event go back to the dawn of human events . . . , any
attempt to impose responsibility upon such a basis would result in infinite liability,'” and federal
statutes with causative language have often been read to exclude remote consequences. Rite-Hite
Corp. v. Kelly Co., Inc., 56 F.3d 1538, 1546 n.4 (Fed. Cir. 1995) (en banc) (quoting W. PAGE
KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 41, at 264 (5th ed. 1984)); see CSX
Transp., Inc. v. McBride, 131 S. Ct. 2630, 2642 (2011) (“To prevent ‘infinite liability,’ . . . courts and
legislatures appropriately place limits on the chain of causation that may support recovery on any
particular claim. The term ‘proximate cause’ itself is hardly essential to the imposition of such
limits.”); see also Pac. Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680, 690-91 (2012)
(rejecting interpretation of “as the result of” language in workers’ compensation statute that would,
“[t]aken to its logical conclusion,” encompass workers whose jobs have “virtually nothing to do
with” the operations noted in the statute); Rite-Hite Corp., 56 F.3d at 1546 (despite the broad
language of 35 U.S.C. § 284, “remote consequences” are not compensable).
Overall, the federal courts have recognized that conduct is not a “cause” of an injury in the
legal sense if the injury would have occurred regardless of the conduct, or if there is an intervening
exercise of independent judgment, or if the injury is simply too attenuated from the conduct.
See, e.g., Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983) (“Some
effects that are ’caused by’ a change in the physical environment in the sense of ‘but for’ causation,
will nonetheless not fall within [the statute’s purview] because the causal chain is too attenuated.”);
Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 179 (2d Cir. 2013) (“A defendant’s
conduct is not a cause-in-fact of an injury or loss if the injury or loss would have occurred regardless
of the conduct.”); Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999) (noting, in the
context of an unlawful arrest and subsequent conviction and incarceration, that the chain of causation
to the arresting officer is severed by an intervening exercise of independent judgment).
Such an attenuation is present here. Based on the record of proceedings (ROP) and facts
found by the Board, Mr. Ollis’s disability was, at best, a remote consequence of – and not caused by
7
– VA’s conduct.8 See Gardner, 513 U.S. at 119; Viegas, 705 F.3d at 1383. Although it is unclear
what doctors or institutions VA’s Dr. Rottman recommended to Mr. Ollis, Dr. Rottman’s
contemporaneous medical note highlights the MAZE procedure as one option and references
providing multiple recommendations. See R. at 1318. The record further reflects that, about a week
after his meeting with Dr. Rottman, Mr. Ollis visited his longtime private physician Dr. Teague, who
referred him to Dr. Hall, another private physician, without any indication that VA was involved.
See R. at 405 (Dr. Teague’s July 2007 progress note stating that Mr. Ollis “will be referred” to Dr.
Hall), 87 (Dr. Hall’s July 2007 progress note specifically thanking Dr. Teague for “ask[ing] us to see
this patient”). Dr. Hall, a non-VA employee, performed the disabling surgery in a non-VA facility,
and the Board found no contractual or agency relationship between VA and Dr. Hall. See R. at 19.
Based on the ROP, the Board’s finding is plausible and not clearly erroneous. See Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990) (“‘A finding is “clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'” (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948))); see also U.S. Gypsum Co., 333 U.S. at 396 (assigning little probative weight to
testimony that conflicted with contemporaneous documents).
Assuming arguendo that Dr. Rottman’s advice and recommendations constitute
“medical . . . treatment . . . by a Department employee” (38 U.S.C. § 1151(a)(1)), this “treatment”
did not cause Mr. Ollis to have the surgery with Dr. Hall. Even assuming that Dr. Teague and Dr.
Hall were two of the private doctors recommended by VA’s Dr. Rottman, the fact remains that Dr.
Teague specifically referred Mr. Ollis to Dr. Hall, and Mr. Ollis chose to have the MAZE procedure
performed by Dr. Hall. Based on these intervening and independent actions by non-VA actors, the
conduct of VA’s Dr. Rottman suggesting some physicians to Mr. Ollis that could perform the MAZE
procedure, or even referring him to several physicians, is simply too remote from Mr. Ollis’s
disability to be considered its cause. See Gardner, 513 U.S. at 119; Viegas, 705 F.3d at 1383.
8 Our dissenting colleague notes our holding that Mr. Ollis’s disability was not caused by VA conduct because
it was, at best, a remote consequence of VA medical treatment, but he fails to note that the Federal Circuit’s Viegas
decision addresses causation and constitutes a binding precedent that is consistent with the general interpretation of
“proximate cause” in the federal courts, as discussed in the text prior to this note.
8
B. Negligent Referral
With regard to whether the record was properly developed on the issue of negligent referral,
we note that there is no indication from the record that Mr. Ollis raised this issue below. Rather, Mr.
Ollis contended during the administrative processing of his claim that VA should be held liable for
the consequences of its referral, and the Board addressed this argument. Because the negligentreferral
issue was not reasonably raised below, we find no error in the fact that it was not addressed
or developed by the Board. See Robinson, supra. Additionally, Mr. Ollis fails to identify any
evidence indicating that Dr. Hall was not qualified to perform the MAZE procedure or that VA
medical personnel were negligent in any recommendation regarding who might be able to perform
the MAZE procedure. His arguments regarding negligent referral are, therefore, speculative at best,
and we decline to address such assertions further. See Brewer v. West, 11 Vet.App. 228, 236-37
(1998) (where appellant offers “mere assertions” without providing legal support, the Court need not
further discuss the argument); see also Maggitt, supra.
C. Duty To Inform Claimants About Section 1151
Mr. Ollis additionally asserts that he was never informed that undergoing the MAZE
procedure at a non-VA facility might affect his eligibility for section 1151 benefits, and he argues
that VA has a statutory and constitutional duty to provide such information when a VAMC cannot
perform a procedure. In support of this argument, Mr. Ollis (1) cites 38 U.S.C. § 6303(c), which
states that the Secretary “shall distribute full information to eligible veterans and eligible dependents
regarding all benefits and services to which they may be entitled under laws administered by the
Secretary,” and (2) states that it is “surely inappropriate” that hundreds of thousands of veterans are
being referred from VAMCs to private facilities each month, without information as to how that
might affect their eligibility for section 1151 benefits. Mr. Ollis also cites Cushman for the
propositions that (1) he has a constitutionally protected property interest in his application for
benefits, 576 F.3d at 1298, and (2) his property interest may not be deprived without notice and a
fair opportunity to be heard, id. at 1296.
Initially, the Court notes that these arguments were not raised by Mr. Ollis to the Board, or
reasonably raised by the record, and we find no error in the Board not addressing them.
See Robinson, supra. Nevertheless, we find them well formed and worthy of consideration in the
9
first instance. See Maggitt, supra. As to Mr. Ollis’s statutory argument, the language of
section 6303(c) was located at 38 U.S.C. § 7722(c) prior to 2006 and was reviewed by the Federal
Circuit in 2003. The language was found to be hortatory, rather than an enforceable legal obligation.
See Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003); Rodriguez v. West, 189 F.3d 1351,
1355 (Fed. Cir. 1999) (discussed in Andrews). As to Mr. Ollis’s argument that the current referral
procedures are “surely inappropriate,” that argument is a red herring. Regardless of whether it is
“inappropriate,” Mr. Ollis fails to demonstrate that such notice is legally required. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on
appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
Our dissenting colleague cites an American Medical Association (AMA) opinion in support
of his view that patients of VA medical care should not be “induced” to waive their eligibility for
section 1151 benefits without informed consent. Post at 13. With great respect for our colleague,
the facts of this case do not support the underlying suggestion that Mr. Ollis was “induced” to waive
any benefits under section 1151. Moreover, the AMA opinion amounts to a suggestion to inform
a patient if treatment by a referred medical specialist or facility is not covered by the patient’s
insurance; the opinion says nothing about notifying a patient that the referring doctor would not be
liable for negligent medical care provided by the referred medical specialist or facility. This case
does not involve a request for reimbursement of medical expenses and thus we find the AMA
opinion inapposite here.
In support of his constitutional argument that claimants possess a due process right to be
notified before losing eligibility for benefits, Mr. Ollis cites United States v. Copeland, 376 F.3d 61,
70-73 (2d Cir. 2004), and United States v. Lopez-Velasquez, 629 F.3d 894, 897 n.2 (9th Cir. 2010).
Copeland held that an immigration judge’s failure to inform an alien of eligibility for relief from
deportation may be fundamentally unfair, but the Copeland court based its analysis on an
immigration statute, 8 U.S.C. § 1326(d)(3), not on due process. And, although Lopez-Velasquez
used the term “due process,” the “failure to inform” in that case was a failure that occurred during
administrative deportation proceedings – not, as here, before administrative proceedings
commenced. We therefore find these cases inapposite.
With regard to Cushman, the Federal Circuit held in that case that a veteran has a protected
10
property interest in a given disability benefit “upon a showing that he meets the eligibility
requirements set forth in the governing statutes and regulations.” 576 F.3d at 1298. If a veteran does
not meet the eligibility requirements for that benefit, however, he does not have a protected property
interest in it. See id. at 1297 (noting “an absolute right of benefits to qualified individuals”
(emphasis added)); see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) (“To
have a property interest in a benefit, a person [ ] must . . . have a legitimate claim of entitlement to
it.”). This principle recently was made clear by the Federal Circuit in Devlin v. Office of Pers.
Mgmt., 767 F.3d 1285, 1288 (Fed. Cir. 2014), where the appellant (representing his mother’s estate)
argued that his mother had a protected property interest in certain death benefits. The Federal Circuit
rejected his argument because (1) filing an application for the benefits was a statutory prerequisite
for entitlement to those benefits, and (2) his mother never filed an application that would have
established her eligibility. Citing Cushman in support, the Federal Circuit held that, “[b]ecause she
did not file the necessary application,” the appellant’s mother “was not entitled to [the death benefits]
and thus had no protected property interest in those benefits.” Devlin, 767 F.3d at 1288. Here, at
the time Mr. Ollis was told that VA could not perform his surgery, he had not shown his eligibility
for section 1151 benefits. He had not undergone the MAZE procedure, suffered an additional
disability, or filed an application for section 1151 benefits. See Cushman, 576 F.3d at 1297
(“[A]pplicants for . . . benefits possess a constitutionally protected property interest in those
benefits.” (emphasis added)). Succinctly stated, Mr. Ollis’s property interest would not vest until and
unless he met the eligibility requirements for section 1151 benefits. Therefore, the lack of notice to
Mr. Ollis that undergoing the MAZE procedure at a non-VA facility might affect his section 1151
eligibility if his third-party medical care was negligently provided did not constitute a constitutional
due process violation, and we find no basis for inserting such a notice requirement within the section
1151 statutory scheme for VA benefits caused by hospital care, medical or surgical treatment.
D. Remaining Arguments
Because Mr. Ollis does not demonstrate that he meets the second requirement for section
1151 compensation, his argument related to section 1151’s third requirement – whether VA medical
personnel advised him of the risks of the procedure or whether the disabilities were not reasonably
foreseeable – need not be addressed. See Viegas, 705 F.3d at 1377 (noting three prerequisites for
11
benefits under section 1151). In sum, Mr. Ollis fails to demonstrate that VA personnel or treatment
caused the disability for which he seeks VA benefits, and he otherwise fails to demonstrate that the
Board erred in denying entitlement to benefits under section 1151. See Hilkert, supra.
IV. CONCLUSION
Upon consideration of the foregoing, that part of the April 1, 2014, Board decision on appeal
is AFFIRMED.
GREENBERG, Judge, dissenting: I dissent. The majority’s application of 38 U.S.C. § 1151
is unduly narrow and withdraws necessary protections from a rapidly growing class of veterans.
The Board determined that the appellant was not eligible for benefits based on his phrenic
nerve paralysis because that disability was not “caused by hospital care, medical or surgical
treatment, or examination furnished the veteran under any law administered by the Secretary, either
by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title.”
38 U.S.C. § 1151(a)(1). The majority holds that the Board did not err in its reasoning, because
“section 1151 does not extend to the ‘remote consequences’ of VA medical treatment.”9
When a veteran’s doctor recommends a course of treatment, it is not a remote consequence
of that recommendation for the veteran to pursue it. The appellant’s uncontroverted testimony at his
Board hearing is dispositive: when he went to the VA medical center with questions regarding the
MAZE procedure, his treating physician, Dr. Rottman,10 specifically “recommended that I have the
9 The majority accurately describes the Supreme Court’s holding in Brown v. Gardner, 513 U.S. 115 (1994),
that at the time of the decision, 38 U.S.C. § 1151 lacked a requirement that additional disability be the result of VA
carelessness, negligence, lack of proper skill, error in judgment, or similar instance of indicated fault. The majority also
correctly states that Congress amended section 1151 in 1996 and added the requirement that disability be proximately
caused by VA fault or an event not reasonably foreseeable. That fault requirement is not before the Court; the appellant’s
eligibility for benefits, governed by the first clause of § 1151(a)(1), is in question, but his entitlement to those benefits,
governed by the remainder of § 1151(a), including subsections (A), (B), and (2), has not yet been considered by the Court
or even the Board.
10 In an August 10, 2013, letter to VA, the appellant states:
Records show that in 1998, Dr. Crocker, (Knoxville VA outpatient facility) referred me to Nashville
VA Cardiology, stating that the Nashville VA has some of the best cardiologist[s] in the nation and
that I should have them check me out. I agreed to the referral and have been under the care of these
cardiologists ever since. I started seeing Dr. Rottman in 1998 for my atrial fib[rillation]. In 1999 an
12
procedure because of my age. [Dr. Rottman] thought I could handle it a lot better than somebody
at the age of seventy.” R. at 479 (emphasis added). The doctor did not, as the majority suggests,
merely perform the administrative task of notifying the appellant of local medical institutions,
without endorsing any procedure or medical provider. The record indicates the appellant went to his
doctor for medical advice, the doctor recommended that the appellant undergo the MAZE procedure,
and the appellant consequently had it performed, resulting in his phrenic nerve injury. The
connection between the doctor’s recommendation and the performance of the procedure here is
hardly attenuated.
I am further concerned that the majority endorses absolving VA and its physicians of any
duty to warn claimants when a medical recommendation jeopardizes eligibility for section 1151
benefits. Irrespective of due process, it is inequitable for the appellant to be induced, through a VA
doctor’s medical recommendation, to waive his eligibility for section 1151 benefits without informed
consent as to that waiver. The Court should take heed of the American Medical Association’s
recognition that “[i]f a physician knows that a patient’s health care plan or other agreement does not
cover referral to a non-contracting medical specialist or to a facility that the physician believes to be
in the patient’s best interest, the physician should so inform the patient to permit the patient to decide
whether to accept the outside referral.” Code of Medical Ethics Opinion 8.132 (Am. Med. Ass’n
2007). VA’s provision of medical care helps fulfill a promise to our nation’s veterans, but it must
be implied in that promise that VA will not accept, much less impel, unknowing waiver. This
promise is similar to those implied in all contracts. See, e.g., Wood v. Duff-Gordon, 222 N.Y. 88,
91, 118 N.E. 214 (1917) (Cardozo, J.) (“The law has outgrown its primitive stage of formalism when
the precise word was the sovereign talisman, and every slip was fatal.”). As a matter of equity, the
Court should at least hold that a veteran cannot lose section 1151 eligibility when he or she has
followed a VA medical recommendation and was never properly informed of the possible
attempt was made to do an ablation at the VA in Nashville. This procedure was unsuccessful at which
time a month later, a pacemaker was installed to help with my problem. Records show in 2005 that
the pacemaker was defective and the generator was replaced. Then in 2007 this new procedure (Mini
Maze) was available and it was then discussed with me to attempt this procedure to correct the atrial
fib.
R. at 96. It does not appear from the record that, in his 9 years of treating the appellant prior to 2007, Dr. Rottman had
ever recommended a procedure that required the appellant to seek care at a non-VA institution.
13
consequences.
Permitting such a remedy for veterans is necessary in light of recent developments expanding
the provision of care to veterans by non-VA facilities. See, e.g., Pub. L. No. 113-146,
§ 101(a)(1)(A), (B) (2014) (“The Veterans Access, Choice, and Accountability Act of 2014”). The
Court should not reduce the reach of the protective benefits of section 1151 just as Congress
increases the number of veterans who will need them. I cannot join a holding that frustrates the
veteran-friendly intent of Congress. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.*, 1 L. Ed. 436
(1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and
justice of Congress.”).
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