Citation Nr: 1327971	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  10-24 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, for a total abdominal hysterectomy and bilateral salpingo-oopherectomy on December 26, 2005.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and friend


ATTORNEY FOR THE BOARD

A.M.Clark, Counsel


INTRODUCTION

The Veteran served on active duty from June 1979 to July 1982, and from January 1991 to March 1991. 

This matter comes to the Board of Veterans Appeals (Board) on appeal from a June 2009 rating decision (RD) of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 

In July 2011, the Veteran testified at a Board video conference hearing. A transcript of the hearing is of record.


FINDINGS OF FACT

The total abdominal hysterectomy and bilateral salpingo-oopherectomy that the Veteran underwent on December 26, 2005 was not performed by a VA employee and did not occur in a facility over which the Secretary of VA has jurisdiction.


CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C. § 1151 for a total abdominal hysterectomy and bilateral salpingo-oopherectomy on December 26, 2005 are not met.  38 U.S.C.A. §§ 1151, 1701, 1703, 5107 (West 2002); 38 C.F.R. § 3.361 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks 38 U.S.C.A. § 1151 benefits for additional disability stemming from a total abdominal hysterectomy and bilateral salpingo-oopherectomy performed at the Oklahoma University Medical Center on December 26, 2005.  In this regard, the Veteran asserts that such treatment resulted in a surgical clip being left in her body which causes her pain, and a tender scar. 

The Board is aware of VA's notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 38 C.F.R. § 3.159 has been revised in part recently.  Pursuant to revisions effective as of May 30, 2008, under 38 C.F.R. § 3.159(b)(3), however, no duty to provide 38 U.S.C.A. § 5103(a) notice arises when, as a matter of law, entitlement to the benefit claimed cannot be established.  See 73 Fed. Reg. 23, 353- 23,356 (April 30, 2008).  Accordingly, no further analysis of VA's compliance with any duties to notify and assist is warranted in the present case, as the claim is being denied as a matter of law.

The Veteran's claim for 38 U.S.C.A. § 1151 benefits was submitted in March 2009.  For claims filed on or after October 1, 1997, compensation under this statute shall be awarded for a qualifying additional disability caused by improper VA treatment. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability 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). 

The term 'facilities of the Department' includes facilities over which the Secretary has direct jurisdiction; Government facilities for which the Secretary contracts; and public or private facilities at which the Secretary provides recreational activities for patients receiving care under 38 U.S.C.A. § 1710 (hospital, nursing home, and domiciliary care).  See 38 U.S.C.A. § 1701(3)(A).

Under 38 C.F.R. § 3.361(f), 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.A. § 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.A. § 1720. (3) Hospital care or medical services, including examination, provided under 38 U.S.C.A. § 8153 in a facility over which the Secretary does not have direct jurisdiction.

The underlying facts of this case are not in dispute.  The Veteran arrived at the Oklahoma VA Medical Center Emergency Room on December 24, 2005 complaining of pain in the umbilicus area and extending across from left to right and up and down.  A CT scan reflected a large pelvic mass associated with the right adnexa.  ObGyn was consulted and after a careful evaluation they decided to transfer the Veteran to Oklahoma University Medical Center Presbyterian Tower for expedited surgery the following morning.  The Veteran underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy on December 26, 2005 at the private hospital.  As noted above, the Veteran asserts that this surgery resulted in a surgical clip being left in her body which causes her pain and a tender scar. 

The Board is sympathetic to the Veteran's situation.  However, the claim fails as a matter of law because the total abdominal hysterectomy and bilateral salpingo-oophorectomy at issue was performed at a non-VA facility by a non-VA employee. The Board acknowledges that VA transferred the Veteran to Oklahoma University Medical Center Presbyterian Tower for expedited surgery and, per the Veteran's hearing testimony, that VA contracted out with this facility for such treatment.  However, as noted above, 38 C.F.R. § 3.361(f) specifically excludes awards for benefits under 38 U.S.C.A. § 1151 for hospital care or medical services furnished by contract under 38 U.S.C.A. § 1703.  Under 38 U.S.C.A. § 1703 the Secretary may contract with non-Department facilities to furnish hospital care or medical service to a veteran for treatment of a service-connected disability, a disability for which a veteran was discharged or released from service or for a disability of a veteran who has a total disability permanent in nature from a service-connected disability.  See 38 U.S.C.A. § 1703(1).  VA may also contract with non-Department facilities to provide medical services for treatment of a veteran who has been furnished hospital care and requires medical service to complete treatment incident to such care or services and for hospital care for women veterans.  See 38 U.S.C.A. § 1703(2), (4).  

It is therefore clear that the surgery performed at the Oklahoma University Medical Center Presbyterian Tower does not meet the requirements under 38 U.S.C.A. §1151 that such medical services be provided in a Department facility.  Furthermore, the record does not reflect, and the Veteran does not contend, that the physician who performed the surgery at issue was under the direct ('day-to-day') jurisdiction of VA supervisors.  38 C.F.R. § 3.361(e).

Accordingly, any additional disability incurred due to surgery performed at the Oklahoma University Medical Center Presbyterian Tower is ineligible for compensation under 38 U.S.C.A. § 1151 as a matter of law, and the Board need not resolve the issue of whether any additional disability the Veteran may have was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of Oklahoma University Medical Center since this is not a Department facility.  See 38 U.S.C.A. §§ 1151, 1701(3)(A).

In this case, it is the law and not the evidence that is dispositive. Lacking legal merit, the Veteran's claim must be denied.  See generally Sabonis v. Brown, 6 Vet. App. 426 (1994).

In reaching the above conclusion, the Board expresses no opinion as to the merits of any civil tort claim that the Veteran may seek to bring against the private medical facility where she received her surgery in 2005. 

In concluding that the Veteran is not eligible for 38 U.S.C.A. § 1151 benefits, the Board has considered the recent United States Court of Appeals for the Federal Circuit (Federal Circuit) decision, Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013).  In this case a veteran participated in a prescribed aquatic therapy session at a VA medical center.  After one of these sessions, he stopped to use a restroom located in the VA facility.  While in the restroom, the grab bar he was using to lift himself into his wheelchair became loose from the wall and he fell to the ground, causing him to sustain additional injuries to his upper and lower extremities.  In this case, the Federal Circuit stated that the veteran's injuries were proximately caused by VA's failure to properly install and maintain the grab bar in the VA medical facility's restroom.  The Federal Circuit noted that there was nothing in the plain language of section 1151 that required a veteran's injury to be 'directly' caused by the 'actual provision' of medical care by VA personnel. Instead, the statute requires only a 'causal connection,' which includes injuries that occur in a VA facility as a result of VA's negligence.  Accordingly, the Federal Circuit found that there was nothing to indicate that Congress had intended to preclude compensation for injuries stemming from VA's failure to properly install and maintain the equipment necessary to provide health care services. 

The instant case can be clearly distinguished from the holding of the Federal Circuit in Viegas.  In Viegas, the injury occurred on site at the VA facility.  In the instant case, the Veteran's alleged injuries are the result of surgery performed on the premises of a private facility.  The holding in Viegas specifically noted that section 1151 does not extend to the 'remote consequences' of hospital care or medical treatment provided by the VA. 

Finally, the Board has additionally considered allegations by the Veteran that she should be compensated under 38 U.S.C.A. § 1151 because she was attending school under Chapter 31 vocational rehabilitation when she started to have pain in her abdomen.  See March 2009 Claim.  She did not allege vocational rehabilitation caused her symptoms.  Veterans who sustain an additional disability as the result of vocational rehabilitation shall receive disability compensation in the same manner as if such disability was service connected.  38 U.S.C.A. § 1151 (West 2002).  However, upon clarification at her July 2011 BVA Hearing the Veteran indicated that she did not feel the cause for her hysterectomy had anything directly to do with any duties of vocational training.  See BVA Hearing Transcript (T.) at 20.  Therefore a claim for 38 U.S.C.A. § 1151 due to vocational rehabilitation is not warranted. 

In summary, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151, for a total abdominal hysterectomy and bilateral salpingo-oopherectomy on December 26, 2005, is denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs