Citation Nr: 21076051 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-54 346 DATE: December 22, 2021 REMANDED Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for pancreatitis, claimed as due to treatment provided by the Department of Veterans Affairs is remanded. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for a gall bladder condition, claimed as due to treatment provided by the Department of Veterans Affairs is remanded. REASONS FOR REMAND The Veteran served on active duty from June 29, 1978 to August 10, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for pancreatitis, claimed as due to treatment provided by the Department of Veterans Affairs is remanded. 2. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for a gall bladder condition, claimed as due to treatment provided by the Department of Veterans Affairs is remanded. The Veteran seeks compensation benefits under 38 U.S.C. § 1151 for pancreatitis and a gall bladder condition that he contends occurred as the result of negligence following an endoscopic retrograde cholangiopancreatography (ERCP) and sphincterectomy by a VA-employed physician at a non-VA facility, New York Upstate Medical Center (UMC), in November 2014. Specifically, the Veteran contends that the VA-employed physician scheduled him for an ERCP at a VA medical center, but then rescheduled it at UMC because the VA medical center did not have the correct equipment to perform the procedure. The Veteran contends that the VA-employed physician negligently chose to perform a sphincterectomy before getting the necessary pressure readings or other required diagnostic testing. The Veteran also contends that he was initially informed he would require 48 hours of care in the hospital after his surgery but was then negligently discharged the same day. The Veteran experienced severe abdominal distress and required emergency department care following his discharge from UMC, which has manifested as pancreatitis. The evidence of record shows that Dr. Roy was employed by the U.S. Department of Veterans Affairs but also had privileges at UMC. 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 physician performing the November 2014 procedure, but also on whether the procedure 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. Roy 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 Dr. Roy referred him to himself at UMC because the Syracuse VA Medical Center was unable to perform the procedure. 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 November 2014 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. 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. Additionally, 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). It is unclear from the record whether the pancreatitis and gall bladder conditions were reasonably foreseeable consequences of the ERCP procedure. 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 procedure (i.e., that the VA practitioners recommended that the Veteran have the procedure), (2) the pancreatitis and gallbladder condition that occurred were "unforeseeable events", and (3) the procedure proximately caused the Veteran's additional disability. The evidence of record shows that the Veteran's VA health care providers initially scheduled the surgery at the VA and then the VA provider referred him to himself at UMC for the procedure; however, additional development is necessary to determine whether the pancreatitis and gall bladder condition was an "unforeseeable event" or a known risk of the procedure. As such, a medical opinion addressing this issue should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records concerning the Veteran's treatment. 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 November 2014 procedure 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 New York Upstate Medical University or payments made to UMC for services rendered. 4. Obtain medical opinions addressing whether the pancreatitis and gall bladder condition that occurred subsequent to the ERCP procedure and sphincterectomy was a known risk of the procedure 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 November 2014 ERCP procedure and sphincterectomy 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 the ERCP procedure and/or early discharge from the hospital? (c.) Was the pancreatitis and/or gall bladder condition the Veteran sustained following the November 2014 ERCP and sphincterectomy 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). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.