Ollis v. Shulkin

• Decision Date: 26 May 2017
• Docket Number: 2016-1315
• Citation: 857 F.3d 1338
• Parties: Paul L. OLLIS, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

857 F.3d 1338

Paul L. OLLIS, Claimant-Appellant

v.David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee

2016-1315

United States Court of Appeals, Federal Circuit.

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. 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 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 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 de-fined 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, 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 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, 115 S.Ct. 552, 130 L.Ed.2d 462 (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, 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

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