PAUL L. OLLIS, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 14-1680, Judge Bruce E. Kasold, Judge Coral Wong
Pietsch, Judge William Greenberg.
Michael Schoenhard, McDermott, Will & Emery LLP,
Washington, DC, argued for claimant-appellant. Also
represented by Darrell Stark, Ropes & Gray LLP,
Washington, DC; Samuel Lawrence Brenner, Boston, MA.
Misha Preheim, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Benjamin C.
Mizer, Robert E. Kirschman, Jr., Martin F. Hockey, Jr.;
Martie Adelman, Brian D. Griffin, Office of General Counsel,
United States Department of Veterans Affairs, Washington, DC.
Dyk, Reyna, and Stoll, Circuit Judges.
Ollis, a veteran, brought a claim for disability benefits
under 38 U.S.C. § 1151, a section that requires the
Department of Veterans Affairs ("VA") to pay
benefits for certain injuries incurred as a result of VA
medical care. Mr. Ollis suffers from a trial fibrillation and
claims a disability resulting from complications of a heart
procedure to treat that condition. The procedure (called
mini-MAZE) was allegedly recommended by a VA doctor but was
performed by a private doctor. The VA denied Mr. Ollis's
application for benefits, and both the Board of Veterans'
Appeals and the Court of Appeals for Veterans Claims
("Veterans Court") affirmed. We affirm in part and
vacate and remand in part.
Ollis was diagnosed with a trial fibrillation in 1997. He had
a surgical ablation procedure to treat that condition in 1999
at a VA facility in Nashville, Tennessee, and had a pacemaker
put in later that same year. The ablation procedure proved
unsuccessful in treating his condition. Afterwards, he
continued to receive care from the VA and from Dr. Teague, a
a 2007 check-up conducted by the VA, Mr. Ollis met with a
nurse practitioner and inquired about a MAZE
procedure for his heart to treat his atrial
fibrillation. His VA cardiologist, Dr. Rottman, later
reviewed Mr. Ollis's file and noted that
"[s]ur[gi]cal MAZE is one avail[a]ble option" and
that "epicardial MAZE would be the current
preference." J.A. 2. Epicardial MAZE is also known as
minimally invasive MAZE or mini-MAZE. Since the VA facility
did not have the specialized equipment and operators for a
mini-MAZE procedure, Dr. Rottman noted that "it could be
performed at other local institutions" and indicated
that "[r]ecommendations [were] provided." J.A. 2,
80. Before the Board, Mr. Ollis was asked: "did the V.A.
recommend that you have the procedure or did-or did they
simply advise you that a procedure was available?, " to
which he responded that the VA "recommended that I have
the procedure because of my age" and "they thought
I could handle it a lot better than somebody at the age of
seventy." J.A. 144. There is no suggestion, however,
that Dr. Rottman recommended Dr. Hall, the private
cardiologist who later performed Mr. Ollis's procedure,
or Methodist Medical Center, the medical facility in which
Dr. Hall performed it.
Ollis then saw his private cardiologist, Dr. Teague, and they
discussed the different medical procedures that were
available. Dr. Teague referred him to Dr. Hall, another
private cardiologist, for further evaluation for a mini-MAZE
procedure. In his progress notes, Dr. Hall stated: "We
appreciate Dr. Teague asking us to see this patient."
J.A. 64. Dr. Hall performed the procedure in August 2007 at
the Methodist Medical Center, paid for by Mr. Ollis and his
private medical insurance. Mr. Ollis asserts that his phrenic
nerve was damaged during the procedure. He claims that this
phrenic nerve damage resulted in paralysis of his diaphragm,
causing shortness of breath and decreased lung function.
is no indication that Mr. Ollis asserted a claim for damages
against Dr. Hall or the hospital where Dr. Hall performed the
procedure. Instead, Mr. Ollis filed for disability benefits
under 38 U.S.C. § 1151. That section requires the VA to
provide benefits for a "qualifying additional disability
. . . in the same manner as if [it] were
service-connected." § 1151(a). Under §
[A] disability or death is a qualifying additional disability
or qualifying death if the disability or death was not the
result of the veteran's willful misconduct and-
(1) the disability or death was caused by hospital
care, medical or surgical treatment, or examination furnished
the veteran under any law administered by the Secretary,
either by a Department employee or in a Department facility
as defined in section 1701(3)(A) of this title, and the
proximate cause of the 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 . . . .
Id. (emphasis added).
Veterans Court affirmed the denial of Mr. Ollis's
application because his injury was not caused by VA medical
care since, under our decision in Viegas v.
Shinseki, 705 F.3d 1374 (Fed. Cir. 2013), it was too
attenuated from VA conduct. The Veterans Court noted that
"Dr. Hall, a non-VA employee, performed the disabling
surgery in a non-VA facility, and [there was] no contractual
or agency relationship between VA and Dr. Hall." J.A. 8.
The Veterans Court also found no due process right to notice
that referral to a private doctor could affect benefits under
§ 1151(a). A dissent emphasized that a VA doctor had
recommended a particular course of treatment to Mr. Ollis
(the mini-MAZE procedure) and concluded that it was not a
remote consequence for him to pursue that course of
treatment. The dissent also disagreed with the majority's
due process determination.
Ollis petitions for review. We have jurisdiction under ...