Veteranclaims’s Blog

June 3, 2017

Ollis v. Shulkin, No. 2016-1315(Decided: May 26, 2017); Viegas 705 F.3d at 1383; § 1151(a)(1)(A); Negligence; Caused By; Reasonably Foreseeable; Proximate Cause; Remote Consequence; Cause and Proximate Cause Requirements; Remoteness Requirement;

Excerpt from decision below:

“The question remains, however, whether Mr. Ollis’s VA medical doctors were negligent under § 1151(a)(1)(A) by recommending the mini-MAZE procedure to him, and we remand for consideration of this question.”

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

“B. Event Not Reasonably Foreseeable
A theory of recovery under § 1151(a)(1)(B) in the referral context presents a more difficult interpretive question.
In order to resolve this case, it is necessary to construe several terms of the statute insofar as they apply to § 1151(a)(1)(B): (1) “not reasonably foreseeable”; (2)
“proximate cause of the disability or death”; and (3) “caused by.” “[N]ot reasonably foreseeable.” Current VA regulations indicate that, for an event to qualify as an event not reasonably foreseeable, it must be judged not reasonably foreseeable at the time of the disability-causing event—in this case, performance of the mini-MAZE procedure—not at some earlier point in time such as referral or recommendation
by the VA. The regulations make this clear that an event not reasonably foreseeable “must be one that a reasonable health care provider would not haveconsidered to be an ordinary risk of the treatment provid

OLLIS v. SHULKIN 13
ed” and not “the type of risk that a reasonable health care provider would have disclosed in connection with . . . informed consent.” 38 C.F.R. § 3.361(d)(2). The Veterans Court did not address this question of whether the lack of
foreseeability requirement was satisfied here. “[P]roximate cause of the disability or death.” Under § 1151(a)(1)(B), the “proximate cause of the disability or
death” language performs a limited function. The veteran need only show that the disability or death was proximately caused by the unforeseeable event, and a showing of fault is not required. One could envisage a situation in
which an unforeseeable event is not the proximate cause of a disability, for example, if phrenic nerve severance would not foreseeably cause shortness of breath and
decreased lung function. But there is no contention here that is the case. It is also equally clear that an unforeseeable event such as phrenic nerve severance can be the
proximate cause of the disability, meaning that the proximate cause requirement of § 1151(a)(1)(B) would be satisfied. Again, the Veterans Court did not address this
requirement.
“[C]aused by.” But even if Mr. Ollis can satisfy the proximate cause requirement of § 1151(a)(1)(B), the cause requirement of § 1151(a)(1) remains. The government
argues that the cause requirement in § 1151(a)(1) includes at least some lesser proximate causation. To the extent the government argues and the Veterans Court concluded that VA medical care must proximately cause a claimant’s disability, that is inconsistent with § 1151(a)(1)(B) and would render it a nullity. By definition a claimant cannot show that an injury that is unforeseeable was proximately caused by VA medical care.
At the same time, we are convinced that Congress did not contemplate a mere but-for cause analysis under this requirement. From the background of the statute, it seems quite clear that Congress intended some concept of
14 OLLIS v. SHULKIN
remoteness to be inherent in the cause requirement of § 1151(a)(1). We explained as much in Viegas, concluding that “the statute does not extend to the ‘remote consequences’ of the hospital care or medical treatment provided by the VA.” 705 F.3d at 1383. As Viegas recognized, this cause requirement might not be satisfied “[i]f, for example, a veteran reported to a VA medical center for an examination, and hours later was injured while engaged in recreational activities at the facility, [since] his injury might well be deemed only a ‘remote consequence’ of his earlier examination.” Id.
Thus, we think that cause under § 1151(a)(1) incorporates some remoteness requirement. This remoteness requirement is the same as the traditional proximate cause requirement but without fault and applicable to a limited sequence of events. See Gardner, 513 U.S. 119 (“Assuming that the [causal] connection is limited to proximate causation so as to narrow the class of compensable cases, that narrowing occurs by eliminating remote consequences . . . .” (emphasis added)). It is, in other words, a lesser proximate cause requirement. As discussed earlier, the basis for recovery under § 1151(a)(1)(B)—i.e., an event not reasonably foreseeable—indicates that the statute cannot require proximate causation between VA medical treatment and the disability.
By definition an unforeseeable event cannot be proximately connected to medical treatment. Causation, however, requires that VA medical treatment proximately
cause the treatment that caused the disability—i.e., that it caused the mini-MAZE procedure. Here, in other words, only the performance of the mini-MAZE procedure and not the nerve severance or the resulting shortness of breath and decreased lung function must be proximately caused by VA medical treatment to satisfy the cause requirement in § 1151(a)(1).
Mr. Ollis seeks to draw a chain of causation that includes the recommendation provided by a VA doctor that
OLLIS v. SHULKIN 15
ultimately led Mr. Ollis to see Dr. Hall, the private cardiologist who actually performed the mini-MAZE procedure that damaged his phrenic nerve and caused his disability.
3 The question remains whether VA medical care
proximately caused the mini-MAZE procedure, a question
not addressed by the Veterans Court.
III
Accordingly, when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care (here, the mini-MAZE procedure) during which the unforeseeable event occurred (here, the severance of the phrenic nerve). Section 1151(a)(1)(B) further requires that the unforeseeable event—phrenic nerve damage—proximately cause the disability. As such, the chain of causation has two components (neither of which requires fault)—i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.
To some extent the Veterans Court appears to have confused the cause and proximate cause requirements of § 1151(a)(1) and § 1151(a)(1)(A)–(B). See J.A. 8 n.8 (“Viegas . . . addresses causation and . . . is consistent with the general interpretation of ‘proximate cause’ . . . .”). Specifically, the Veterans Court made two legal errors in this aspect of its analysis. First, it framed the question as whether Mr. Ollis’s disability was a remote consequence of VA medical treatment, whereas the correct inquiry under § 1151(a)(1)(B) is whether the medical procedure was a remote consequence of VA medical treatment—i.e., whether VA medical treatment proximately caused
3 As noted earlier, this is not a case where a private
doctor acted as an agent of the VA.
16 OLLIS v. SHULKIN
Mr. Ollis to undergo the mini-MAZE procedure. See J.A. 7–8 (“Mr. Ollis’s disability was, at best, a remote consequence of—and not caused by—VA’s conduct.”) (emphasis
added); id. at 8 (“[T]he conduct of VA’s Dr. Rottman . . . is simply too remote from Mr. Ollis’s disability to be considered its cause.”) (emphasis added).Second, the Veterans Court focused on the question whether VA medical treatment
caused Mr. Ollis to utilize Dr. Hall and Methodist Medical Center, rather than on whether VA medical treatment caused him to have the mini-MAZE procedure itself. The Veterans Court’s decision did not analyze this case under that framework, and a remand is required. On
remand, the Veterans Court must also address the not reasonably foreseeable and proximate cause of the disability or death requirements.

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United States Court of Appeals for the Federal Circuit
______________________
PAUL L. OLLIS,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1315
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1680, Judge Bruce E. Kasold,
Judge Coral Wong Pietsch, Judge William Greenberg.
______________________
Decided: May 26, 2017
______________________
PAUL MICHAEL SCHOENHARD, McDermott, Will & Emery
LLP, Washington, DC, argued for claimant-appellant.
Also represented by DARRELL STARK, Ropes & Gray LLP,
Washington, DC; SAMUEL LAWRENCE BRENNER, Boston,
MA.
LOREN MISHA PREHEIM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
2 OLLIS v. SHULKIN
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; MARTIE
ADELMAN, BRIAN D. GRIFFIN, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
DC.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
DYK, Circuit Judge.
Paul Ollis, a veteran, brought a claim for disability
benefits under 38 U.S.C. § 1151, a section that requires
the Department of Veterans Affairs (“VA”) to pay benefits
for certain injuries incurred as a result of VA medical
care. Mr. Ollis suffers from atrial fibrillation and claims a
disability resulting from complications of a heart procedure
to treat that condition. The procedure (called mini-
MAZE) was allegedly recommended by a VA doctor but
was performed by a private doctor. The VA denied
Mr. Ollis’s application for benefits, and both the Board of
Veterans’ Appeals and the Court of Appeals for Veterans
Claims (“Veterans Court”) affirmed. We affirm in part and
vacate and remand in part.
BACKGROUND
Mr. Ollis was diagnosed with atrial fibrillation in
1997. He had a surgical ablation procedure to treat that
condition in 1999 at a VA facility in Nashville, Tennessee,
and had a pacemaker put in later that same year. The
ablation procedure proved unsuccessful in treating his
condition. Afterwards, he continued to receive care from
the VA and from Dr. Teague, a private cardiologist.
During a 2007 check-up conducted by the VA,
Mr. Ollis met with a nurse practitioner and inquired
OLLIS v. SHULKIN 3
about a MAZE procedure1 for his heart to treat his atrial
fibrillation. His VA cardiologist, Dr. Rottman, later reviewed
Mr. Ollis’s file and noted that “[s]ur[gi]cal MAZE
is one avail[a]ble option” and that “epicardial MAZE
would be the current preference.” J.A. 2. Epicardial MAZE
is also known as minimally invasive MAZE or mini-
MAZE. Since the VA facility did not have the specialized
equipment and operators for a mini-MAZE procedure,
Dr. Rottman noted that “it could be performed at other
local institutions” and indicated that “[r]ecommendations
[were] provided.” J.A. 2, 80. Before the Board, Mr. Ollis
was asked: “did the V.A. recommend that you have the
procedure or did—or did they simply advise you that a
procedure was available?,” to which he responded that the
VA “recommended that I have the procedure because of
my age” and “they thought I could handle it a lot better
than somebody at the age of seventy.” J.A. 144. There is
no suggestion, however, that Dr. Rottman recommended
Dr. Hall, the private cardiologist who later performed
Mr. Ollis’s procedure, or Methodist Medical Center, the
medical facility in which Dr. Hall performed it.
Mr. Ollis then saw his private cardiologist,
Dr. Teague, and they discussed the different medical
procedures that were available. Dr. Teague referred him
to Dr. Hall, another private cardiologist, for further
evaluation for a mini-MAZE procedure. In his progress
1 As the Veterans Court explained, a “‘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.’” J.A. 2 n.6 (quoting Dorland’s Illustrated
Medical Dictionary 1517 (32d ed. 2012)).
4 OLLIS v. SHULKIN
notes, Dr. Hall stated: “We appreciate Dr. Teague asking
us to see this patient.” J.A. 64. Dr. Hall performed the
procedure in August 2007 at the Methodist Medical
Center, paid for by Mr. Ollis and his private medical
insurance.2 Mr. Ollis asserts that his phrenic nerve was
damaged during the procedure. He claims that this phrenic
nerve damage resulted in paralysis of his diaphragm,
causing shortness of breath and decreased lung function.
There is no indication that Mr. Ollis asserted a claim
for damages against Dr. Hall or the hospital where
Dr. Hall performed the procedure. Instead, Mr. Ollis filed
for disability benefits under 38 U.S.C. § 1151. That section
requires the VA to provide benefits for a “qualifying
additional disability . . . in the same manner as if [it] were
service-connected.” § 1151(a). Under § 1151(a),
[A] disability or death is a qualifying additional
disability or qualifying death if the disability or
death was not the result of the veteran’s willful
misconduct and—
(1) the disability or death was 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, and
the proximate cause of the disability or
death was—
(A) carelessness, negligence, lack
of proper skill, error in judgment,
2 Since the procedure was performed by a private
doctor, in a non-VA facility, and paid for by private insurance,
we are not dealing with a situation where a private
physician acts as an agent of the VA.
OLLIS v. SHULKIN 5
or similar instance of fault on the
part of the Department in furnishing
the hospital care, medical or
surgical treatment, or examination;
or
(B) an event not reasonably foreseeable
. . . .
Id. (emphasis added).
The Veterans Court affirmed the denial of Mr. Ollis’s
application because his injury was not caused by VA
medical care since, under our decision in Viegas v.
Shinseki, 705 F.3d 1374 (Fed. Cir. 2013), it was too attenuated
from VA conduct. The Veterans Court noted that
“Dr. Hall, a non-VA employee, performed the disabling
surgery in a non-VA facility, and [there was] no contractual
or agency relationship between VA and Dr. Hall.”
J.A. 8. The Veterans Court also found no due process
right to notice that referral to a private doctor could affect
benefits under § 1151(a). A dissent emphasized that a VA
doctor had recommended a particular course of treatment
to Mr. Ollis (the mini-MAZE procedure) and concluded
that it was not a remote consequence for him to pursue
that course of treatment. The dissent also disagreed with
the majority’s due process determination.
Mr. Ollis petitions for review. We have jurisdiction
under 38 U.S.C. § 7292.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “decide
all relevant questions of law, including interpreting
constitutional and statutory provisions,” id. § 7292(d)(1),
and our review of these questions is de novo, e.g., Cushman
v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).
But, except to the extent that an appeal presents a constitutional
issue, we “may not review (A) a challenge to a
6 OLLIS v. SHULKIN
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2). If the decision by the Veterans Court
is not in accordance with law, we can reverse, modify, or
remand. Id. § 7292(e)(1).
I
Section 1151 has a long history and is used “typically
to provide benefits to veterans for nonservice related
disabilities” resulting from VA medical care. Brown v.
Gardner, 513 U.S. 115, 116 n.1 (1994), abrogated in part
by statute, Pub. L. No. 104-204, § 422(a), 110 Stat. 2874,
2926–27 (1996); see also Viegas, 705 F.3d at 1381–82. The
provision originated with the World War Veterans’ Act,
1924, Pub. L. No. 68-242, § 213, 43 Stat. 607, 623. The
provision was amended several times thereafter and
renumbered in 1991. See Department of Veterans Affairs
Codification Act, Pub. L. No. 102-83, §§ 4(a)(1), 5(a), 105
Stat. 378, 403, 406 (1991). The 1991 version was reviewed
by the Supreme Court in Gardner. Throughout its various
iterations, including the version at issue in Gardner, the
provision provided benefits if a veteran “suffered an
injury, or an aggravation of an injury, as the result of
hospitalization, [or] medical or surgical treatment.” 38
U.S.C. § 1151 (1994); 38 U.S.C. § 351 (1982); 38 U.S.C.
§ 351 (1958); see 38 U.S.C. § 501 (1934).
Since at least as early as 1938, VA regulations interpreting
the provision had required fault by the VA. The
regulations provided that “[c]ompensation is not payable
for either the usual or the unusual after results of approved
medical care properly administered, in the absence
of a showing that the disability proximately resulted
through carelessness, accident, negligence, lack of proper
skill, error in judgment, etc.” 38 C.F.R. § 2.1123(c)(4)
(1938); see also 38 C.F.R. § 3.123 (1956). In 1961, VA
altered this language to provide that “the disability
proximately resulted through carelessness, accident,
OLLIS v. SHULKIN 7
negligence, lack of proper skill, error in judgment, or
similar instances of indicated fault on the part of the
[VA].” Pensions, Bonuses, and Veterans’ Relief, 26 Fed.
Reg. 1561, 1590–91 (Feb. 24, 1961) (emphasis added). VA
also amended the regulations to make explicit that the “as
the result of” language in the statute is a “cause” requirement.
Id.
An opinion by VA’s General Counsel in 1978 then
opined that the fault requirement in the regulations was
in error with respect to “accidents.” U.S. Dep’t of Veterans
Affairs, Op. Gen. Counsel 2-78 (Oct. 25, 1978). After
analyzing the legislative history of the provision and the
development of VA regulations implementing it, the
opinion concluded that Congress had intended recovery
for a disability deriving from either an accident or some
form of negligence or fault by VA. The opinion also made
clear that an accident would not encompass “expected or
contemplated risks of surgery, no matter how remote.” Id.
at 5. Accordingly VA amended the regulations to provide
that:
Compensation is not payable for either the contemplated
or foreseeable after results of approved
medical or surgical care properly administered, no
matter how remote, in the absence of a showing
that additional disability or death proximately resulted
through carelessnes[s], negligence, lack of
proper skill, error in judgment, or similar instances
of indicated fault on the part of the Veterans’
Administration. However, compensation is payable
in the event of the occurrence of an “accident”
(an unforeseen, untoward event), causing additional
disability or death proximately resulting
from Veterans’ Administration hospitalization or
medical or surgical care.
Ratings for Special Purposes, 43 Fed. Reg. 51,015 (Nov. 2,
1978) (final regulation); see also Ratings for Special
8 OLLIS v. SHULKIN
Purposes, 43 Fed. Reg. 34,505 (Aug. 4, 1978) (proposed
rulemaking). In proposing this change to the regulation,
VA made clear that compensation predicated on an unforeseeable
event would not extend to expected or normal
risks of VA medical care unless there was a showing of
fault by the VA. See 43 Fed. Reg. 34,505. The amended
regulation, 38 C.F.R. § 3.358(c)(3) (1993), was the version
at issue in Gardner.
In Gardner, the Supreme Court addressed whether
this regulation, by requiring some level of fault by the VA
(except for unforeseeable events), was consistent with the
governing text of § 1151, which only required that the
“injury” occur “as the result of” hospitalization or medical
treatment. 513 U.S. at 117–20. The Court held that
neither the “injury” nor “as the result of” language contemplated
an element of fault by the VA, and that “it
would be unreasonable to read the text of § 1151 as imposing
a burden of demonstrating [fault] upon seeking
compensation.” Id. at 120.
In analyzing the “as the result of” language, the Court
concluded that it “is naturally read simply to impose the
requirement of a causal connection between the ‘injury’ or
‘aggravation of an injury’ and ‘hospitalization, medical or
surgical treatment, or the pursuit of a course of vocational
rehabilitation.’” Id. at 119. The Court noted that if the
causal connection was meant to require “proximate causation
so as to narrow the class of compensable cases, that
narrowing occurs by eliminating remote consequences,
not by requiring a demonstration of fault.” Id.
After the Supreme Court’s decision in Gardner, in
1996 Congress amended § 1151. See Departments of
Veterans Affairs and Housing and Urban Development,
and Independent Agencies Appropriations Act, 1997, Pub.
L. No. 104-204, § 422(a), 110 Stat. 2874, 2926–27 (1996).
In many ways, Congress adopted the prior VA regulation,
abrogated the decision in Gardner, and explicitly required
OLLIS v. SHULKIN 9
an element of fault by the VA or an unforeseeable event.
First, Congress altered the “as the result of” language in
§ 1151, but still maintained the basic requirement of a
causal connection between the disability and VA treatment
or care—i.e., “the disability or death was caused by
hospital care, medical or surgical treatment, or examination
furnished the veteran . . . by a [VA] employee or in a
[VA] facility.” Id. (emphasis added).
Second, Congress added a requirement that “the proximate
cause of the disability or death was . . . carelessness,
negligence, lack of proper skill, error in judgment, or
similar instances of fault on the part of the [VA] . . . [or]
an event not reasonably foreseeable.” Id. (emphasis
added).
More recently, in Viegas we considered the causation
requirement of § 1151. There, the veteran went to a
prescribed aquatic therapy session in a VA facility and
subsequently sustained an injury when the grab bar in
one of the restrooms came loose from the wall when he
attempted to use it. 705 F.3d at 1376. We reversed a
decision by the Veterans Court that had denied compensation,
holding that, even though Congress replaced “as
the result of” with “caused by,” the cause requirement
remained substantively unchanged. Id. at 1382. The panel
found “no indication that [by amending § 1151, Congress]
intended to impose any additional restrictions on the
statute’s original causation element.” Id. at 1382. The
Viegas decision further reaffirmed that under Gardner
this cause requirement means that coverage “does not
extend to the ‘remote consequences’ of the hospital care or
medical treatment provided by the VA.” Id. at 1383. But
Viegas held that the veteran’s injury from the faulty grab
bar was not a remote consequence of VA medical treatment
since using the restroom is part of medical care and
the injury stemmed from VA’s failure “to properly install
and maintain the equipment necessary for the provision
of his medical care.” Id.
10 OLLIS v. SHULKIN
II
The question presented in this case is how to construe
the statutory requirements of § 1151 when the disabilitycausing
event occurred during a medical procedure not
performed by a VA doctor or in a VA facility. More specifically,
we consider the application of § 1151 to referral
situations.
A. Negligence by VA
A theory of recovery under § 1151 based on negligence
by the VA is straightforward. See § 1151(a)(1)(A). The
claimant must show: (1) a causal connection between the
disability and “hospital care, medical or surgical treatment,
or an examination furnished the veteran . . . by a
[VA] employee or in a [VA] facility,” and (2) that “carelessness,
negligence, lack of proper skill, error in judgment,
or similar instance of fault on the part of the [VA]”
was “the proximate cause of the disability.” § 1151(a)(1).
Thus, this theory incorporates the fault element rejected
by the Supreme Court in Gardner but subsequently
added by Congress when it amended § 1151. The standard
for recovery is similar to the usual standard used for
medical malpractice cases. It requires that VA medical
care actually cause the claimant’s disability (a traditional
but-for causation requirement, as opposed to the disability
stemming from “willful misconduct” or the natural
progress of the claimant’s preexisting disease, injury, or
condition, see 38 C.F.R. § 3.361(c)), and that, in providing
such care, VA’s failure “to exercise the degree of care that
would be expected of a reasonable health care provider”
proximately caused the disability. 38 C.F.R.
§ 3.361(d)(1)(i); see also, e.g., 1 David W. Louisell & Harold
Williams, Medical Malpractice § 8.07; 1 Steven E.
Pegalis, American Law of Medical Malpractice §§ 3:1, 5:1
(3d ed. 2016).
OLLIS v. SHULKIN 11
The proximate cause requirement of § 1151(a)(1)(A)
applicable to VA-fault claims thus incorporates traditional
tort law notions of proximate cause. While the precise
meaning and formulation of proximate cause in tort law is
subject to significant debate, its purpose is generally
understood to limit an actor’s legal responsibility. See
Black’s Law Dictionary 265 (10th ed. 2014) (defining
“proximate cause” as “[a] cause that is legally sufficient to
result in liability”); Dan B. Dobbs et al., The Law of Torts
§ 198 (2d ed. 2016 update). Proximate cause limits legal
responsibility to “those [but-for] causes which are so
closely connected with the result . . . that the law is
justified in imposing liability.” W. Page Keeton et. al.,
Prosser & Keeton on Torts § 41, at 264 (5th ed. 1984); see
also Paroline v. United States, 134 S. Ct. 1710, 1719
(2014) (“Every event has many causes . . . [s]o to say that
one event was a proximate cause of another means that it
was not just any cause, but one with a sufficient connection
to the result.”).
As the Supreme Court has recognized, a hallmark
formulation of proximate cause defines its scope in terms
of foreseeability, extending only to those foreseeable risks
created by the negligent conduct. See Paroline, 134 S. Ct.
at 1719 (“Proximate cause is often explicated in terms of
foreseeability . . . .”) (emphasis added); see also Dobbs et
al., § 198 (“The most general and pervasive approach to
. . . proximate cause holds that a negligent defendant is
liable for all the general kinds of harms he foreseeably
risked by his negligent conduct and to the class of persons
he put at risk by that conduct.”) (emphasis added); Keeton
et. al., § 42, at 273 (“[T]he scope of liability should ordinarily
extend to but not beyond the scope of the ‘foreseeable
risks’—that is, the risks by reason of which the actor’s
conduct is held to be negligent.”) (emphasis added).
Before the Veterans Court, Mr. Ollis suggested various
theories of fault under § 1151(a)(1)(A), including that
his VA doctors may have been negligent by recommending
12 OLLIS v. SHULKIN
the mini-MAZE procedure to him, or by referring him to a
particular doctor who negligently performed the mini-
MAZE procedure. The Veterans Court found no “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.” J.A. 9. Even if
Mr. Ollis could meet the cause requirement of
§ 1151(a)(1), the Veterans Court found Mr. Ollis’s arguments
regarding VA fault for negligent referral to a
particular doctor under § 1151(a)(1)(A) to be “speculative
at best,” i.e., that there was no proximate cause between
VA negligence and the injury, id., and we see no legal
error in that analysis. The question remains, however,
whether Mr. Ollis’s VA medical doctors were negligent
under § 1151(a)(1)(A) by recommending the mini-MAZE
procedure to him, and we remand for consideration of this
question.
B. Event Not Reasonably Foreseeable
A theory of recovery under § 1151(a)(1)(B) in the referral
context presents a more difficult interpretive question.
In order to resolve this case, it is necessary to
construe several terms of the statute insofar as they apply
to § 1151(a)(1)(B): (1) “not reasonably foreseeable”; (2)
“proximate cause of the disability or death”; and (3)
“caused by.”
“[N]ot reasonably foreseeable.” Current VA regulations
indicate that, for an event to qualify as an event not
reasonably foreseeable, it must be judged not reasonably
foreseeable at the time of the disability-causing event—in
this case, performance of the mini-MAZE procedure—not
at some earlier point in time such as referral or recommendation
by the VA. The regulations make this clear
that an event not reasonably foreseeable “must be one
that a reasonable health care provider would not have
considered to be an ordinary risk of the treatment providOLLIS
v. SHULKIN 13
ed” and not “the type of risk that a reasonable health care
provider would have disclosed in connection with . . .
informed consent.” 38 C.F.R. § 3.361(d)(2). The Veterans
Court did not address this question of whether the lack of
foreseeability requirement was satisfied here.
“[P]roximate cause of the disability or death.” Under
§ 1151(a)(1)(B), the “proximate cause of the disability or
death” language performs a limited function. The veteran
need only show that the disability or death was proximately
caused by the unforeseeable event, and a showing
of fault is not required. One could envisage a situation in
which an unforeseeable event is not the proximate cause
of a disability, for example, if phrenic nerve severance
would not foreseeably cause shortness of breath and
decreased lung function. But there is no contention here
that is the case. It is also equally clear that an unforeseeable
event such as phrenic nerve severance can be the
proximate cause of the disability, meaning that the proximate
cause requirement of § 1151(a)(1)(B) would be
satisfied. Again, the Veterans Court did not address this
requirement.
“[C]aused by.” But even if Mr. Ollis can satisfy the
proximate cause requirement of § 1151(a)(1)(B), the cause
requirement of § 1151(a)(1) remains. The government
argues that the cause requirement in § 1151(a)(1) includes
at least some lesser proximate causation. To the
extent the government argues and the Veterans Court
concluded that VA medical care must proximately cause a
claimant’s disability, that is inconsistent with
§ 1151(a)(1)(B) and would render it a nullity. By definition
a claimant cannot show that an injury that is unforeseeable
was proximately caused by VA medical care.
At the same time, we are convinced that Congress did
not contemplate a mere but-for cause analysis under this
requirement. From the background of the statute, it
seems quite clear that Congress intended some concept of
14 OLLIS v. SHULKIN
remoteness to be inherent in the cause requirement of
§ 1151(a)(1). We explained as much in Viegas, concluding
that “the statute does not extend to the ‘remote consequences’
of the hospital care or medical treatment provided
by the VA.” 705 F.3d at 1383. As Viegas recognized,
this cause requirement might not be satisfied “[i]f, for
example, a veteran reported to a VA medical center for an
examination, and hours later was injured while engaged
in recreational activities at the facility, [since] his injury
might well be deemed only a ‘remote consequence’ of his
earlier examination.” Id.
Thus, we think that cause under § 1151(a)(1) incorporates
some remoteness requirement. This remoteness
requirement is the same as the traditional proximate
cause requirement but without fault and applicable to a
limited sequence of events. See Gardner, 513 U.S. 119
(“Assuming that the [causal] connection is limited to
proximate causation so as to narrow the class of compensable
cases, that narrowing occurs by eliminating remote
consequences . . . .” (emphasis added)). It is, in other
words, a lesser proximate cause requirement. As discussed
earlier, the basis for recovery under
§ 1151(a)(1)(B)—i.e., an event not reasonably foreseeable—
indicates that the statute cannot require proximate
causation between VA medical treatment and the disability.
By definition an unforeseeable event cannot be proximately
connected to medical treatment. Causation,
however, requires that VA medical treatment proximately
cause the treatment that caused the disability—i.e., that
it caused the mini-MAZE procedure. Here, in other words,
only the performance of the mini-MAZE procedure and
not the nerve severance or the resulting shortness of
breath and decreased lung function must be proximately
caused by VA medical treatment to satisfy the cause
requirement in § 1151(a)(1).
Mr. Ollis seeks to draw a chain of causation that includes
the recommendation provided by a VA doctor that
OLLIS v. SHULKIN 15
ultimately led Mr. Ollis to see Dr. Hall, the private cardiologist
who actually performed the mini-MAZE procedure
that damaged his phrenic nerve and caused his disability.
3 The question remains whether VA medical care
proximately caused the mini-MAZE procedure, a question
not addressed by the Veterans Court.
III
Accordingly, when recovery is predicated on a referral
theory involving an unforeseeable event under
§ 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care
proximately cause the medical treatment or care (here,
the mini-MAZE procedure) during which the unforeseeable
event occurred (here, the severance of the phrenic
nerve). Section 1151(a)(1)(B) further requires that the
unforeseeable event—phrenic nerve damage—
proximately cause the disability. As such, the chain of
causation has two components (neither of which requires
fault)—i.e., proximate cause between VA medical care and
the treatment, and proximate cause between the unforeseeable
event and the disability.
To some extent the Veterans Court appears to have
confused the cause and proximate cause requirements of
§ 1151(a)(1) and § 1151(a)(1)(A)–(B). See J.A. 8 n.8 (“Viegas
. . . addresses causation and . . . is consistent with the
general interpretation of ‘proximate cause’ . . . .”). Specifically,
the Veterans Court made two legal errors in this
aspect of its analysis. First, it framed the question as
whether Mr. Ollis’s disability was a remote consequence
of VA medical treatment, whereas the correct inquiry
under § 1151(a)(1)(B) is whether the medical procedure
was a remote consequence of VA medical treatment—i.e.,
whether VA medical treatment proximately caused
3 As noted earlier, this is not a case where a private
doctor acted as an agent of the VA.
16 OLLIS v. SHULKIN
Mr. Ollis to undergo the mini-MAZE procedure. See J.A.
7–8 (“Mr. Ollis’s disability was, at best, a remote consequence
of—and not caused by—VA’s conduct.”) (emphasis
added); id. at 8 (“[T]he conduct of VA’s Dr. Rottman . . . is
simply too remote from Mr. Ollis’s disability to be considered
its cause.”) (emphasis added). Second, the Veterans
Court focused on the question whether VA medical treatment
caused Mr. Ollis to utilize Dr. Hall and Methodist
Medical Center, rather than on whether VA medical
treatment caused him to have the mini-MAZE procedure
itself. The Veterans Court’s decision did not analyze this
case under that framework, and a remand is required. On
remand, the Veterans Court must also address the not
reasonably foreseeable and proximate cause of the disability
or death requirements.
IV
Lastly, Mr. Ollis argues that VA’s failure to provide
him notice that a referral to a private facility for his mini-
MAZE procedure could extinguish his eligibility for benefits
under § 1151(a) constitutes a violation of his right to
due process. Specifically, Mr. Ollis relies on Cushman v.
Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), to argue that he
has a protected property interest in his right to coverage
under that provision should he meet the requirements,
and the lack of notice violated the basic requirements of
due process—notice and a fair opportunity to be heard.4
4 Before the Veterans Court, Mr. Ollis also relied on
the language of 38 U.S.C. § 6303(c)(1)(A) that the VA
“shall distribute full information to eligible veterans . . .
regarding all benefits and services to which they may be
entitled” to support his due process claim. But we have
previously held this language to be only hortatory (see
Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir.
2003)), and Mr. Ollis does not raise this statutory argument
on appeal.
OLLIS v. SHULKIN 17
The Veterans Court held that there was no due process
violation.
In Cushman we held that entitlement to veterans’
disability benefits is a protected property interest since
such benefits are nondiscretionary and mandated by
statute. Id. at 1298. There, VA’s reliance on an improperly
altered medical record in adjudicating the veteran’s claim
for monetary benefits constituted a due process violation.
Id. at 1300. As such, Cushman addressed the adequacy of
the adjudication procedure. There is no due process right
to notice regarding conditions that might in the future
affect an individual veteran’s right to monetary benefits
(a right that is governed by statute and regulation) before
the veteran incurs an injury or applies for such benefits.5
See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
576 (1972) (“The Fourteenth Amendment’s procedural
protection of property is a safeguard of the security of
interests that a person has already acquired in specific
benefits.”); see also Devlin v. Office of Pers. Mgmt., 767
F.3d 1285, 1288 (Fed. Cir. 2014) (holding that an application
is necessary for Basic Employee Death Benefits
before there is a protected property interest). Accordingly,
we affirm the Veterans Court’s decision on Mr. Ollis’s due
process claim.
CONCLUSION
We affirm in part and vacate in part the decision by
the Veterans Court and remand for consideration in light
of this opinion.
5 The immigration cases that Mr. Ollis relies on are
inapposite since none involves notice regarding entitlement
to monetary benefits. See United States v. Lopez-
Velasquez, 629 F.3d 894 (9th Cir. 2010); United States v.
Copeland, 376 F.3d 61 (2d Cir. 2004); United States v.
Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004).
18 OLLIS v. SHULKIN
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED
COSTS
Costs to appellant.

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