Citation Nr: 1314185 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 09-10 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for an additional heart/lung disability as a result of treatment at a VA facility. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. FINDING OF FACT The facility at which the Veteran received treatment in August 1987 was not a VA facility for the purposes of establishing entitlement to benefits under 38 U.S.C.A. § 1151. CONCLUSION OF LAW Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a heart/lung disorder as a result of treatment at a VA facility is not established. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) eliminated the concept of a well-grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012)). The Board notes that the Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the present case, the facts are not in dispute. As discussed below, resolution of the Veteran's appeal is wholly dependent on interpretation of the relevant VA statutes and regulations, and their application to the facts already of record. In this particular case, the facts that serve as the basis of the denial of the claim are incontrovertible. Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, any deficiencies of VCAA notice or assistance, if they exist are rendered moot. See 38 U.S.C.A. § 5103A ; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). The Veteran contends that he sustained an additional heart/lung disability as a result of a lithotripsy performed at a private facility under contract with VA. Therefore, he contends that he is entitled to benefits for this disability under 38 U.S.C.A. § 1151. Section 1151 requires not only that the VA treatment in question resulted in additional disability, but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). With regard to the former element, it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished such care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(c), (d) (2011). To determine whether the Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2011). The Veteran underwent a lithotripsy in August 1987 at a private facility under contract with VA to perform the procedure. A chest X-ray taken after the procedure showed some veiling of the left lung that was stated to be a possible pleuritic reaction to the lithotripsy. However, the question of whether the Veteran, in fact, has an additional lung disability as a result of the treatment he received in August 1987 is rendered moot because the claim must be denied as a matter of law. The lithotripsy in August 1987 was performed at a private facility at VA's behest. The Veteran argues that he is still entitled to benefits that resulted from that treatment even though it was at a private facility because the treatment was contracted by VA. VA may enter into a contract with a private facility to provide health care services under 38 U.S.C.A. §§ 1703 and 8153. Further, 38 U.S.C.A. § 8153(c) states that eligibility for hospital care and medical services furnished to a Veteran pursuant to that section are subject to the same terms as though provided in a VA health care facility, and provisions of Title 38 applicable to persons receiving hospital care or medical services in a VA health care facility apply to veterans treated under that subsection. However, 38 U.S.C.A. § 1151 states that compensation shall be paid for disability or death caused by hospital care, medical or surgical treatment, or examination furnished to 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). 38 U.S.C.A. § 1151 (West 2002). 38 U.S.C.A. § 1701(3)(A) defines "Department facility " as a facility over which the Secretary has direct jurisdiction, or a government facility for which the Secretary contracts, and public or private facilities at which the Secretary provides recreational activities for patients receiving care under section 1710. 38 U.S.C.A. § 1701(3)(A) (West 2002). 38 C.F.R. § 3.361(e) then defines VA department employees and facilities as follows. (1) A Department employee is an individual-- (i) Who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. 2105; (ii) Who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) Whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. (2) A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(f) then provides that the following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. 1151(a): (1) Hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) Nursing home care furnished under 38 U.S.C. 1720; and (3) Hospital care or medical services, including examination, provided under 38 U.S.C. 8153 in a facility over which the Secretary does not have direct jurisdiction. Neither the Veteran nor his representative claims that the treatment in question was received at a facility over which the Secretary of VA has direct jurisdiction. The only argument made is that 38 U.S.C.A. § 1151 applies to the Veteran's care received at a private facility because it was contracted by VA. However, 38 C.F.R. § 3.361 clearly excludes such treatment from benefits pursuant to 38 U.S.C.A. § 1151. The Board acknowledges the Veteran's argument that his claim is supported by the VA Adjudication Procedure Manual (Manual) in that the Manual states that VA treatment or examination resulting in additional disability or death coincident with a Veteran's residence in a contracted non-VA facility might result in eligibility under 38 U.S.C. 1151. M21-1MR, part IV, subpart ii, chapter 2, section G. However, this provision refers to VA treatment received at the same time a Veteran is a resident at a contracted non-VA facility. In this case, the Veteran received treatment at a contracted non-VA facility, not VA treatment. Further, the August 1987 VA discharge summary shows that the Veteran was not a resident at the private facility. Rather, he was sent to the private hospital for the lithotripsy and then returned that same day to VA. Therefore, that provision of the Manual does not apply to the facts of this case. In light of the above, the Board determines that, regardless of whether additional disability was sustained as a result of the August 1987 lithotripsy, the procedure did not constitute treatment by a VA employee or at a VA facility. Accordingly, the Veteran's claim is denied as a matter of law. ORDER Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for an additional heart/lung disability as a result of treatment at a VA facility is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs