Citation Nr: 21028610 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-26 451 DATE: May 11, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a cardiac disability under a 38 U.S.C. § 1151 referral basis for a surgical procedure is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for phrenic nerve paralysis under a 38 U.S.C. § 1151 referral basis for a surgical procedure is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from June 1975 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Board, in pertinent part, denied entitlement to compensation under 38 U.S.C. § 1151 for a cardiac disability and phrenic nerve paralysis. The Veteran appealed the Board's April 2014 decision to the United States Court of Appeals for Veterans Claims (Court). On October 2015, the Court affirmed that part of the April 2014 Board decision. The Veteran appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In May 2017, the Federal Circuit recognized that a claimant may succeed on a referral theory under 38 U.S.C. § 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure; thus, it affirmed in part and vacated in part the Court's October 2015 decision, remanding the matter for further consideration. In a December 2017 memorandum decision, the Court vacated the Board's April 2014 decision and remanded the matter for further consideration and instructions consistent with the Federal Circuit's May 2017 holding. The Board notes that the Veteran presented testimony before a Veterans Law Judge (VLJ) in September 2011. The VLJ who conducted the hearing is no longer employed by the Board. In April 2020, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. In a response provided later that month, the Veteran elected to have another Board hearing. In January 2021, the Veteran testified at a virtual tele-hearing before the undersigned VLJ. A transcript of the hearing has been associated with the Veteran's electronic claims file. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a cardiac disability under a 38 U.S.C. § 1151 referral basis for a surgical procedure is remanded. See Argument Below 2. Entitlement to compensation under 38 U.S.C. § 1151 for phrenic nerve paralysis under a 38 U.S.C. § 1151 referral basis for a surgical procedure is remanded. The Veteran asserts that he is entitled to compensation under 38 U.S.C. § 1151 on the basis VA recommended that he undergo a procedure referred to as a "MAZE" procedure to treat his atrial fibrillation, resulting in his current cardiac disability and phrenic nerve paralysis. Generally, in order to warrant compensation under 38 U.S.C. § 1151, there must be a qualifying additional disability which was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the additional disability or death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. In this regard, the Veteran's VA treatment records reflect that, prior to the August 2007 MAZE procedure, the Veteran was treated for cardiac issues at the Nashville VA medical center (VAMC). He was also treated at private medical facilities. A March 1999 VA treatment record shows that he underwent an ablation procedure. A July 1999 VA treatment record shows that he received a pacemaker. Following implantation of his pacemaker, the Veteran received periodic treatment for his heart condition from both VA and private medical providers. A June 2007 VA treatment record shows that the Veteran had his pacemaker checked. The Veteran reported that, in January 2007, he had a syncopal episode, which was preceded by severe diaphoresis. The Veteran reported atrial fibrillation with a heart rate of 300 beats. He indicated that he had a follow-up with his private physician at Parkway Cardiology. Dr. J.R., a VA physician, noted that surgical MAZE was one available option as treatment for the Veteran's condition. Dr. J.R. noted, "While this is not available at the VA (specialized operators and equipment are required), it could be performed at other local institutions. Recommendations provided." Notably, during the January 2021 Board hearing, the Veteran testified that Dr. J.R.'s referral was verbal, and that "no paperwork was ever sent to the referring physician." An August 2007 private treatment record shows that the Veteran underwent the MAZE procedure at the Methodist Medical Center of Oak Ridge, Tennessee. In April 2014, the Board denied the Veteran's claims for compensation under 38 U.S.C. § 1151, as the Veteran's surgery was not conducted by a VA employee or at a VA facility, and thus, did not qualify for consideration under 38 U.S.C. § 1151. As previously noted, in October 2015, the Court affirmed the Board's April 2014 decision. The Veteran appealed the Court's decision to the Federal Circuit. In May 2017, the Federal Circuit issued a decision in which it 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). 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 Federal Circuit 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. Thus, based on the Federal Circuit's May 2017 holding, 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 MAZE procedure in August 2007 (i.e., that the VA practitioners 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, if any. As noted above, the physician who recommended surgical MAZE as one available option as treatment for the Veteran's condition did so while working within a VA medical center; thus, the Veteran's claim is one regarding a "referral" pursuant to 38 U.S.C. § 1151(a)(1)(B) as an event not reasonably foreseeable. Following the August 2007 MAZE procedure, the Veteran was found to have phrenic nerve paralysis. Accordingly, the Veteran has established a viable theory of entitlement to service connection for additional qualifying disabilities of a cardiac condition and phrenic nerve paralysis on a "referral" basis under § 1151(a)(1)(B) as an event not reasonably foreseeable. Thus, the Board finds that a medical opinion is needed on remand. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Obtain a medical opinion pursuant to 38 U.S.C. § 5109/38 C.F.R. § 3.328 from a qualified physician to address whether the Veteran has additional disability caused by non-VA surgery. The clinician should specifically address the following: (a) Does the Veteran have "additional disability" proximately caused by VA's referral of the Veteran for a MAZE procedure? If so, please identify the nature of his post-surgical additional disability, to include whether there is additional disability in the form of aggravation of an already existing cardiac disability. (b) If the Veteran has an additional disability caused (or aggravated) by the VA's referral for a MAZE procedure, is it at least as likely as not that such additional disability was reasonably foreseeable as an ordinary risk of the treatment? Please thoroughly explain why or why not. In making these determinations, the examiner must be mindful that the proximate cause of a Veteran's additional disability need not be completely unforeseeable or unimaginable. Instead, it must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.