Ollis v. McDonald


Ollis v. McDonald, 27 Vet.App. 405 (October 28, 2015)
38 U.S.C. § 1151; NON-VA CARE
HELD: 38 U.S.C. § 1151 does not cover procedures performed by non-VA physicians, even if a VA doctor referred the veteran to the physician and recommended the procedure. There is also no due process right to be informed of losing section 1151 eligibility by getting non-VA treatment.
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    Veteran received both VA and private treatment for his heart condition. When the veteran asked his VA nurse practitioner about a “MAZE” procedure for his atrial fibrillation, he was told that VA did not do the procedure, but that she would ask a VA doctor to review his records and make a recommendation. The doctor reviewed the veteran’s medical records and stated in the progress notes that MAZE was one option and that “epicardial MAZE would be the current preference.” The doctor noted that this was not available at the VA facility, but that recommendations would be provided.

    The veteran next visited his private physician to discuss his options. The private doctor’s notes do not mention a VA referral, but did mention referral to another private doctor. Three weeks later, the veteran saw the second private doctor, who subsequently performed the surgery that supposedly resulted in damage to his right phrenic nerve.

    Nearly one year later, the veteran filed a claim for service-connected disability benefits under 38 U.S.C. § 1151, asserting that VA should be liable for the treatment he received as a result of VA’s referral or recommendation. The Board denied service connection under section 1151, finding that the surgery was performed at a non-VA facility by a non-VA employee and that VA did not require the private doctor to act on its behalf, nor did VA supervise or have a contract with that doctor.

    On appeal to the CAVC, the veteran argued that the recommendations from the VA doctor constituted VA care and was causally related to his current disabilities; that the record was not fully developed on issues of proximate cause (i.e., whether VA personnel advised the veteran of potential risks or investigated the credentials of the recommended doctors); and that VA had a constitutional duty to inform a veteran that non-VA procedures might jeopardize eligibility for section 1151 benefits.

    The Court first discussed the history of 38 U.S.C. § 1151, noting the Supreme Court’s decision in Brown v. Gardner, 513 U.S. 115, 119 (1994), which held that there was no fault requirement in the statute at that time. The Gardner case resulted in Congress adding a fault element to the statute in 1996. More recently, the Federal Circuit held that section 1151 only requires a “causal connection” between the disability and VA treatment – not that the disability be “directly caused by” the treatment – and does not extend to “remote consequences” of VA treatment.

    The Court noted that other “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.” The Court found that the veteran’s “disability was, at best, a remote consequence of – and not caused by – VA’s conduct,” particularly since it was the veteran’s long-time private physician who actually referred him to the doctor who performed the surgery. The Court added that even if the VA doctor’s advice constituted VA medical treatment under section 1151, “this ‘treatment’ did not cause Mr. Ollis to have the surgery” with the private doctor.  

    The Court similarly rejected the veteran’s argument regarding negligent referral, finding that he “failed to identify any evidence” showing that the doctor was not qualified to perform the procedure or that VA personnel were negligent in any recommendations.  

    Regarding VA’s duty to inform claimants about the risk of losing entitlement to service connection under section 1151, the Court noted the veteran’s statutory and due process arguments, and rejected them both. The statute that requires VA to inform veterans of all benefits to which they may be entitled, 38 U.S.C. § 6303(c), had been previously reviewed by the Federal Circuit and found to not be “an enforceable legal obligation.”

    The due process argument – that the veteran has a constitutionally protected property interest in his application for benefits that cannot be taken away without notice and an opportunity to be heard – was also rejected by the Court. The veteran cited Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), to support this argument. The Court noted that the Federal Circuit in Cushman held that the veteran in that case had “a protected 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 the veteran is not eligible for that benefit, “he does not have a protected property interest in it.”

    In this case, the Court stated, “at the time Mr. Ollis was told that VA could not perform his surgery, he had not shown his eligibility for section 1151 benefits.” The Court thus held that the lack of notice that the veteran might jeopardize entitlement to section 1151 benefits if the private medical care was negligently provided was not a constitutional due process violation.

    Judge Greenberg dissented, arguing that the majority’s application of section 1151 was “unduly narrow and withdraws necessary protections from a rapidly growing class of veterans.” Judge Greenberg asserted that when a “doctor recommends a course of treatment, it is not a remote consequence of that recommendation for the veteran to pursue it.” He further asserted, “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.” He would have at least held 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 consequences.” He found this remedy to be especially necessary in light of the recent expansion of health care to veterans by non-VA providers through the Choice Act.

    NOTE: This case was appealed to the Federal Circuit in December 2015. Stay tuned.

Category: Veterans’ Law