Section 1151 Claims and the Requirement that a Disability Must be Caused by Care, Treatment or Examination furnished by the VA

Ollis v. McDonald, Case Number 14-1680, was decided October 28, 2015 and concerns

the reach of a Section 1151 claim.

The veteran had been diagnosed with atrial fibrillation and received a pacemaker.  He continued to have problems with the pacemaker, specifically episodes of dizziness, light-headedness and faintness.  As a result he asked his VA cardiologist about a surgical alternative.  The VA cardiologist wrote that the surgery “is one available option.  The epicardial [surgical treatment] would be the current preference.  While this is not available to the VA (specialized operators and equipment are required), it could be performed at other local institutions.  Recommendations provided.”  Id. at *2.

The veteran than went to his private cardiologist to discuss surgical and medical approaches to treatment.  His private cardiologist notes do not mention any VA recommendation or referral.  The private cardiologist referred the veteran to another private cardiologist, who ultimately performed the surgery.  The surgery was not performed at a VAMC or paid for by the VA.  The veteran suffered damage to his right phrenic nerve during the procedure and his cardiac issues resumed.

The Board denied the veteran’s 1151 claim because while his VA cardiologist recommended the procedure as one option to treat the condition, the procedure was ultimately performed at a non-VA facility by a non-VA employee.  Id. at *4.

The veteran argued the medical advice of the VA cardiologist constituted medical treatment that causally connected to his claimed disability.  The Secretary argued that 1151 is limited to procedures performed by the VA or VA employees.

This case involves the second factor in an 1151 claim, the disability must have been caused by care, treatment or examination furnished by the veteran under any law administered by the Secretary, either by a VA employee or facility.

The majority looked at the history of 1151 and found it only requires a “causal connection” between the disability and VA treatment but also “does not extend to the ‘remote consequences’ of VA medical treatment.”  Id. at *6.  The Court then found the connection in this case is too attenuated.  Id. at *7.  It found the disability was at best “a remote consequence of—and not caused by VA’s conduct.  The majority stated that assuming the VA cardiologist’s advice and recommendation was medical “treatment,” it did not cause the veteran to have the surgery.  “Even assuming [the two private cardiologists] were two of the private doctors recommended by [the VA cardiologist], the fact remains that [the veteran was referred by one private cardiologist to another private cardiologist] and [the veteran] chose to have the … procedure performed by [the private cardiologist].  Based on these intervening and independent actions by non-VA actors, the conduct of [the VA cardiologist] suggesting some physicians to [the veteran] that could perform the … procedure, or even referring him to several physicians, is simply too remote from [the veteran’s] disability to be considered its cause.”  Id. at *8.

The majority also rejected the argument that the VA should have informed the veteran that undergoing a procedure at a non-VA facility might affect his eligibility for 1151 benefits.

The dissent by J. Greenberg is rigorous and powerful.  He finds the application of 1151 “unduly narrow and withdraws necessary protections from a rapidly growing class of veterans.”  Id. at *12. 

He explains “When a veteran’s doctor recommends a course of treatment, it is not a remote consequence of that recommendation for the veteran to pursue it.”  Id.  “The record indicates the appellant went to his doctor for medical advice, the doctor recommended that the appellant undergo the … procedure. And the appellant consequently had it performed, resulting in his … injury.  The connection between the doctor’s recommendation and the performance of the procedure here is hardly attenuated.”  Id. at *13.

J. Greenberg also notes the expanding number of veteran’s authorized to seek treatment at non-VA facilities and states he is concerned “the majority endorses absolving VA and its physicians of any duty to warn claimants when a medical recommendation jeopardizes eligibility for section 1151 benefits.”

This case operates to limit the reach of Section 1151 claims based on a somewhat nebulous standard—when something is “too attenuated” as judged by the Court.  The veteran has filed a notice of appeal to the Federal Circuit Court of Appeals.  This should provide the Court to help define the extent of a causation requirement in Section 1151 and I would not be surprised if they came down on the side of the veteran in this case.

Decision written by J. Kasold and joined in by J. Pietsch.  Dissent by Greenberg.