Citation Nr: 22042012 Decision Date: 07/22/22 Archive Date: 07/22/22 DOCKET NO. 19-17 862 DATE: July 22, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for loss of use of both feet is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for impairment of bowel is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1987 to September 1995. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. 1. Entitlement to compensation under 38 U.S.C. § 1151 for loss of use of both feet is remanded; 2. Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disability is remanded; and 3. Entitlement to compensation under 38 U.S.C. § 1151 for impairment of bowel is remanded. A veteran may be awarded compensation for an additional disability, not the result of the Veteran's willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. If an additional disability is shown, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care, treatment, or examination and that a veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(1). Under 38 C.F.R. § 3.361 (e)(1), a Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105 ; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e)(2). Under 38 C.F.R. § 3.361(f), activities that are not hospital care, medical or surgical treatment or examination by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703 ; (2) nursing home care furnished under 38 U.S.C. § 1720 ; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. Nevertheless, 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 38 U.S.C. § 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure or were referred to a particular non-VA medical clinician. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit 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 when 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 may be granted under a referral theory pursuant § 1151(a)(1)(B) if the events were not reasonably foreseeable. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under 38 C.F.R. § § 1151(a)(1)(B), then 38 C.F.R. § 1151(a)(1) requires that the VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) requires that the unforeseeable event proximately cause the additional disability, and "[a]s 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. As discussed above, the Veteran cannot be compensated under 38 U.S.C. § 1151(a)(1)(A) because the doctor who performed the back surgery was a private, non-VA contracted clinician, and the surgery was conducted at a private non-VA contracted hospital. The back surgery was not conducted by a VA employee or in a VA facility. Nevertheless, the Veteran may still be able to recover under 38 U.S.C. § 1151(a)(1)(B) under a referral theory, if VA's referral to the private clinician proximately caused her treatment, and the unforeseeable event proximately caused the additional current disabilities. As an initial matter, VA referred the Veteran to Montgomery Neuro Surgical Associates in October 2014 for back and related neurological disabilities treatment. VA treatment records include a VA referral letter which instructed the Veteran that an initial evaluation appointment had been made on her behalf in October 2014 with a specific private fee-based medical provider, a time and date of the initial appointment, and the private provider's address. At the initial October 2014 appointment with the private clinician, the treatment options were discussed, and back surgery was scheduled in November 2014. Thus, the evidence shows that VA's referral proximately caused the Veteran's treatment with the private fee-based clinician, which culminated in the November 2014 back surgery. Thus, this element has been met. However, a medical opinion is still required to determine whether the Veteran's additional disabilities were not reasonably foreseeable, and if so, if the back surgery proximately caused the unforeseeable additional disabilities. Indeed, the informed consent form(s) related to the November 2014 back surgery are not of record and should be obtained. Therefore, a remand for additional necessary development is required. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Request necessary medical releases from the Veteran, and obtain all informed consent form(s) for the November 2014 back surgery. 3. Then, schedule the Veteran for a VA medical examination with an orthopedic surgeon regarding the causation of the Veteran's bowel, bladder, and nerve disabilities (described as loss of the use of both feet due to a nerve injury affecting the bilateral ankles). After a thorough review of the claims file, the examiner should address the following: a) Identify each current additional disability caused by the November 2014 back surgery, whether diagnosed on examination or at any time during the appellate period, to include nerve injuries resulting in the bilateral foot drop and inability to ambulate, bladder disabilities (including neurogenic bladder and urinary frequency), and bowel disabilities. See, e.g., December 2014, February 2015, and April 2015 VA treatment records. b) Provide an opinion as to whether the Veteran's additional disabilities were not reasonably foreseeable complications of the November 2014 back surgery. *Provide a rationale for each conclusion provided. c) If the additional disabilities were not reasonably foreseeable, provide an opinion as to whether the November 2014 back surgery proximately caused each additional disability as identified in part (a) above in these remand directives. 4. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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.