Citation Nr: 1803883 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-14 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for the residuals of a cerebral vascular accident (stroke) with left hemiplegia, claimed as due to treatment provided by the Department of Veterans Affairs. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks compensation benefits under 38 U.S.C. § 1151 for the residuals of a stroke that he contends occurred as the result of an error during surgery performed by a VA-employed surgeon at a non-VA facility in December 2010. Specifically, the Veteran contends that during a craniotomy for clipping of a right posterior communicating artery aneurysm, neurosurgeon Dr. Fisher committed an error that resulted in the Veteran sustaining a stroke. In support of his claim, the Veteran submitted written statements from his family members alleging that Dr. Fisher stated that he must have clipped or damaged a blood vessel during surgery. The evidence of record shows that Dr. Fisher is a Professor of Neurosurgery at the University of Alabama at Birmingham (UAB), and that the surgery was performed at UAB Hospital. The Veteran also reports that Dr. Fisher is also an employee of VA. In a November 2017 Informal Hearing Presentation, the Veteran's representative notes that there is evidence of record indicating the surgery was performed by a VA doctor at a non-VA facility, but it is unclear from the record whether the surgery was "contracted care" under 38 U.S.C. § 1703 or "how exactly VA is involved in this treatment and/or surgical procedure." The representative requests remand for additional development to determine VA's involvement with the surgery at issue. Additionally, the representative argues that although the VA medical records indicate that a doctor discussed the risks of the surgical procedure with the family and the Veteran, a review of the file shows no evidence of a signed informed consent for the surgery. The representative questions whether all the risks that a reasonable health care provider should disclose were disclosed to the Veteran, including the possibility of a stroke during surgery. The Board agrees that remand is necessary so that additional development may be completed. Negligence and Informed Consent A veteran who suffers an additional disability resulting from surgical treatment provided by a VA employee or at a VA facility is entitled to compensation if the additional disability was not the result of willful misconduct and was proximately caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment. 38 U.S.C. § 1151(a)(1)(A); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The three elements for obtaining compensation based on the negligence or other instance of fault on the part of VA are: (1) the claimant must incur a qualifying additional disability that was not the result of his own willful misconduct; (2) the additional disability must have been caused by hospital care, medical or surgical treatment, or examination furnished the claimant by a VA employee or in a VA facility; and (3) the proximate cause of the claimant's disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. Viegas, 705 F.3d at 1377. In this case, the Veteran's claim turns not only on whether there was fault on the part of the surgeon performing the December 2010 surgery, but also on whether the surgery was actually provided by VA within the meaning of the statute and the implementing regulation. The Board notes that a claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care "provided by VA," which is further defined as services that were either provided by a VA employee or performed in a VA facility. 38 U.S.C. § 1151(a)(1). The implementing regulation, 38 C.F.R. § 3.361(f), further provides that treatment or care furnished either (a) under a contract made under 38 U.S.C. § 1703 (authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required) or (b) under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151(a)(1). Consequently, in this case, even if Dr. Fisher is a VA employee, if the surgery at issue was performed under a contract made pursuant to 38 U.S.C. § 1703, or provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction, the surgery is not considered care furnished by a VA for the purpose of receiving compensation under 38 U.S.C. § 1151. Here, the evidence shows that the Veteran's treating VA doctors referred him to UAB Hospital for surgery because there were no available ICU beds at the Birmingham VA Medical Center. The documents also indicate that this referral was made on a "fee" basis; however, it is unclear whether the surgery was performed pursuant to a contract for care made under 38 U.S.C. § 1703. Thus, on remand, the RO should obtain the necessary documentation to show whether the December 2010 surgery at issue was performed under a contract made pursuant to 38 U.S.C. § 1703, or provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. The Veteran's representative also raises an issue as to whether the Veteran was properly informed of the known risks of the surgery. In this regard, the Board notes that in order to obtain benefits under § 1151 for failure to obtain informed consent, a claimant must still show that care proximately causing the additional disability was performed by a VA employee or at a VA facility. Section 3.361(d)(1) provides that to establish that negligence or similar instance of fault on VA's part proximately caused the veteran's additionally disability, it must be shown that the care not only caused the additional disability, but also that VA either breached the standard of care (i.e., was negligent) or furnished care without the informed consent of the veteran or his or her representative. Consequently, if the surgery performed does not constitute care furnished by a VA for the purpose of receiving compensation under 38 U.S.C. § 1151, the Veteran cannot prevail on this theory. Referral Compensation benefits are not only available under § 1151 for disabilities proximately caused by negligence or similar instances of fault on the part of the VA, but also for disabilities proximately caused by "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(B). For an event to qualify as "an event not reasonably foreseeable," it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided rather than the type of risk that a reasonable health care provider would have disclosed in connection with obtaining informed consent. 38 C.F.R. § 3.361(d)(2). Recently in Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the U.S. Court of Appeals for the Federal Circuit (Court) addressed the application of § 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151(a)(1)(A) on a negligence theory (as discussed above) because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Federal Circuit held that 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 during which the unforeseeable event occurred. The Court further held that § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional 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." Ollis, 857 F.3d at 1346. In this case, under the holding in Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran's surgery (i.e., that the VA practitioners recommended that the Veteran have the surgery performed), (2) the stroke that occurred was an "unforeseeable event", and (3) the stroke proximately caused the Veteran's additional disability. The evidence of record shows that the Veteran's VA health care providers recommended that he have surgery and referred him to UAB for such treatment; however, additional development is necessary to determine whether the stroke was an "unforeseeable event" or a known risk of the surgery. As such, a medical opinion addressing this issue should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records concerning the Veteran's treatment from January 1, 2010 to January 1, 2011. 2. Ask the Veteran if there are any other records he would like to have considered in connection with his claim. Any identified records for which authorization is provided should be sought. 3. Obtain the necessary documentation to show whether the December 2010 surgery at issue was performed under a contract made pursuant to 38 U.S.C. § 1703, or provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. Such documents may include referral documents, invoices received from UAB Hospital or payments made to UAB Hospital for services rendered. 4. Obtain a medical opinion addressing whether the stroke that occurred during surgery was a known risk of the surgery or was it an accident that was not reasonably foreseeable. The examiner should review the claims file, including the statements from the Veteran and his family, and answer the following questions: (a) Does the Veteran have an additional disability after the December 16, 2010 surgery that he did not have prior to such treatment? If so, please identify the additional disability. (b) For each additional disability so identified, is it at least as likely as not that such additional disability was the result of a ruptured aneurysm or stroke the Veteran had during surgery? (c) Was the ruptured aneurysm and/or stroke the Veteran sustained during the December 16, 2010 surgery an event not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed in informed consent procedures), or was it an ordinary known risk of the surgery performed? All findings and conclusions should be supported with complete rationale. If any opinion requested above cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).