Citation Nr: 18134829 Decision Date: 09/13/18 Archive Date: 09/13/18 DOCKET NO. 16-04 448 DATE: September 13, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right hip replacement is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1966 to February 1970. This matter is on appeal from an October 2013 rating decision. 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right hip replacement is remanded The Board observes that in January 2008, Salisbury VA Medical Center referred the Veteran to a non-VA, fee-based physician for a right hip replacement surgery that was subsequently conducted in March 2008. See, e.g., January 2008 VA Request for Outpatient Services. 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, the Veteran’s surgery, which was contracted for with a non-VA provider, is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C. § 1151. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of section 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, 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. More specifically, 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 right hip replacement surgery in March 2008 (i.e., that a VA practitioner recommended that the Veteran have the surgery performed), (2) an “unforeseeable event” occurred, and (3) the unforeseeable event proximately caused the Veteran’s additional disability of residuals of the right hip replacement. Here, the Veteran asserts that a physician at the Salisbury VA Medical Center recommended he have the right hip replacement surgery and he was referred on a fee basis to Catawba Valley Medical Center, where the right hip replacement surgery was performed. A January 2008 VA treatment record and a January 2008 VA Request for Outpatient Services show that the Salisbury VA Medical Center recommended he have the right hip replacement surgery. See January 2008 VA treatment record; January 2008 VA Request for Outpatient Services. Moreover, March 2008 Catawba Valley Medical Center records show that the Veteran underwent right hip replacement surgery at the Catawba Valley Medical Center by way of a pre-operation report and the first post-operation visit notes. See March 2008 Catawba Valley Medical Center records. However, no other relevant records from Catawba Valley Medical Center are of record. Moreover, the Board finds inadequate the August 2013 negative medical opinion, in which the examiner opined that, while the fact that the replacement hip, which was implanted in the Veteran at the non-VA facility in March 2008, turned out to be defective and a cause for the Veteran’s residual problems was not a reasonably foreseeable risk, it could not be said that VA was otherwise negligent because VA was not the one to provide any of the surgical care and follow-up from that March 2008 surgery. See August 2013 negative medical opinion. This August 2013 negative medical opinion is inadequate not only because it was made based on an incomplete set of Catawba Valley Medical Center records, but also because it was made prior to, and therefore without consideration of, the Federal Circuit’s recent holding in Ollis – that benefits associated with medical services performed by a non-VA provider at a non-VA facility may nevertheless be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. In fact, here, no medical opinion addressing the Veteran’s referral theory has yet been obtained. As such, remand is warranted for outstanding records and a medical opinion addressing the foregoing concerns. The matter is REMANDED for the following action: 1. After obtaining the appropriate consent from the Veteran, obtain and associate with the claims file any outstanding private treatment records from Catawba Valley Medical Center regarding the March 2008 right hip surgery and its residuals, to include operative notes, any post-operative notes, follow-up surgery notes and treatment, and any other private treatment records adequately identified by the Veteran with respect to this claim. All attempts to secure this evidence must be documented in the claims file. 2. After all records and/or responses are received and associated with the claims file, arrange to obtain a VA medical opinion by an appropriate examiner with respect to the Veteran’s claim of entitlement to compensation under 38 U.S.C. 1151 for an additional disability of the right hip surgery residuals as the result of the right hip surgery provided in light of the Federal Circuit’s recent holding in Ollis that benefits associated with medical services performed by a non-VA provider at a non-VA facility may be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. Specifically, after a review of the electronic claims file, the medical specialist should offer opinions as to following: a. Whether it is at least as likely as not (i.e., a 50 percent or more probability) that the Veteran sustained additional disability, to include residuals of the right hip surgery, as a result of the March 2008 right hip surgery conducted at Catawba Valley Medical Center. b. If the answer is affirmative, whether it is at least as likely as not (i.e., a 50 percent or more probability) that additional disability was due to an event not reasonably foreseeable or the residuals of the March 2008 right hip surgery was not reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The physician should clearly explain and discuss the medical evidence and the medical principles involved for any opinions expressed. 3. Upon completion of the foregoing, readjudicate the Veteran’s claim based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran with a supplemental statement of the case and the opportunity to respond thereto. (Continued on the next page)   4. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel