Citation Nr: 21027653 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-42 676A DATE: May 6, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for hypoventilation syndrome with diaphragmatic paralysis (lung disability) is granted. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for brachial plexus and phrenic nerve injuries (nerve disability) is granted. FINDINGS OF FACT 1. The Veteran was referred to a non-VA medical provider, where he underwent an August 2012 shoulder surgery. 2. The additional disabilities incurred as a result of the August 2012 shoulder surgery, to include lung disability and nerve disability were the result of an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for a lung disability have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. 2. The criteria for compensation under 38 U.S.C. § 1151 for a nerve disability have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to May 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision from a Department of Veterans Affairs (VA)Regional Office (RO). In September 2019, the Board remanded the claim for additional development. It has been returned. Service Connection Compensation pursuant to 38 U.S.C. § 1151 for lung disability and nerve disability The Veteran seeks compensation under 38 U.S.C. § 1151 for his nerve and lung disabilities that he contends are due to an incorrectly administered nerve block, given as part of the shoulder surgery at the University of California, San Francisco Medical Center (UCSF) performed in August 2012 and referred by a VA practitioner to a non-VA medical provider. Pursuant to 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability as if such disability were service connected. For the purposes of this section, a qualifying additional disability is one that was not the result of a veteran's own willful misconduct and one for which there is actual and proximate causation. 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) 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 shoulder surgery (i.e., that the VA practitioners recommended that the Veteran have the procedure performed), (2) the additional disability that occurred was an "unforeseeable event," and (3) the procedure proximately caused the Veteran's additional disability. Turning to the evidence, VA treatment records show that in March 2012, the VA treating physician indicated that he would refer him to the shoulder surgeons at UCSF Hospital for evaluation and suggestions on possible surgical treatment. A June 2012 VA treatment record shows ongoing shoulder evaluation and recommendation for fee basis left shoulder surgery at UCSF hospital. Thus, the evidence is sufficient to show that VA medical care proximately caused the Veteran's left shoulder surgery in August 2012, as the procedure was recommended by a VA practitioner and referred on a fee basis. Regarding the second element, the evidence also demonstrates that an unforeseeable event occurred. In response to the September 2019 Board remand, the Veteran was afforded a VA medical opinion in November 2020. The examiner noted that the Veteran's shoulder surgery was uneventful, with no complications, and that his condition significantly improved. The examiner also noted that there was no pulmonary complaint that relates to the surgical procedure and that pulmonary complication is not a known complication of rotator cuff tear repair. Finding that the Veteran's neuropathy occurred two years after the left shoulder surgery, he further noted that damage to nerves is possible in any surgical procedure and it is a common risk, however the long gap indicates that there was no damage to the nerve as a result of the procedure, including the injection of the nerve block. The examiner stated that neither a lung disability, nor a nerve disability were reasonably foreseeable outcomes or surgical complications of the shoulder surgery. The Board notes that the November 2020 VA examination is less probative as it is based on inaccurate facts. In this regard, treatment records show that parenthesis of the ulnar nerve was noted as early as October 2012; therefore, nerve damage was indicated as early as two months post shoulder surgery. Also, there appears to be an internal conflict in the examiner's opinion because he found that a nerve disability and lung disability were not foreseeable complications of the shoulder surgery because they are not foreseeable complications of shoulder surgery. Finally, the evidence is in relative equipoise with regard to the foreseeability of the Veteran's additional disabilities caused by his left shoulder surgery. To the extent that these statements could be read to conflict with each other, the Board resolves reasonable doubt in the Veteran's favor to find that the nerve disability and lung disability were not reasonably foreseeable. There is no other competent medical opinion in the file to resolve this apparent conflict, nor that directly contradicts any of the examiner's other findings. Thus, after consideration of the lay testimony and medical evidence, and resolving all reasonable doubt in the Veteran's favor, the criteria for compensation under 38 U.S.C. § 1151 have been met and the appeal is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.