Is 1151 only for damage done by VA directly or does it also cover "Care in the Community"?

[mb76]

I never see this addressed.

[Berta]

There are only 10 BVA decisions since 1992 that involve 1151 and Community Care.

I have not read them all but they can be read in this BVA search feature:

https://www.index.va.gov/search/va/bva_search.jsp?QT=1151&EW=community+care&AT=&ET=&RPP=10&DB=2021&DB=2020&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=19

 

 

https://www.va.gov/vetapp20/files11/20074122.txt

https://www.va.gov/vetapp20/files6/20037247.txt

In part this above link states:

"Initially, the Board notes that it appears the four procedures that form the basis of the Veteran’s claim were furnished under a contract made under 38 U.S.C. § 1703, relating to the Veterans Community Care Program; therefore, the procedures cannot constitute “hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility” for the purpose of an 1151 claim despite the source of payment for such care.  See 38 C.F.R. § 3.361(f).  Nevertheless, this does not prohibit the Veteran from establishing entitlement to the benefit sought on the basis of a “referral theory,” but this type of theory significantly changes the focus of the analysis of the Veteran’s claim when compared with the opinions that have been previously obtained in the context of this appeal.  See Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017).

In Ollis v. Shulkin, the Federal Circuit examined the applicability of section 1151 to referral situations.  The Federal Circuit first acknowledged a referral theory could be based on negligence under 38 U.S.C. § 1151(a)(1)(A), e.g., VA was negligent in recommending a certain procedure, but it also noted the possibility that benefits could be granted under a referral theory pursuant to 38 U.S.C. § 1151(a)(1)(B) without any fault on VA’s part when any additional disability results from an unforeseeable event.  The Federal Circuit noted the proximate cause requirement for a negligence theory under 38 U.S.C. § 1151(a)(1)(A) incorporates traditional tort law notions of proximate cause (“[a] cause that is legally sufficient to result in liability”), but it explained the causation chain for claims based on an unforeseeable event  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 I understand Section 1151 or 38 USC and this assessment based ,on Ollis V Shulkin, there is only 1151 potential only on an "unforseeable event" arising from a VA referral, that directly caused an additional ratable disability ( or death) to the veteran.

I will add more info here if I find it.

 

[Berta]

https://casetext.com/case/ollis-v-shulkin

If you can prove an unforeseeable event caused you ( from the VA  referral) to have additional ratable disability- then you could have a potential basis for 1151-

but you would need to have a very strong medical opinion on that (IMO/IME) based on all of the VA and private care records.

In my opinion, 1151 claims should be focused solely on VA treatment. and comply with the 1151 regulations ( in above BVA decisions).

I realized long ago that ,if my husband had been referred to a private doctor, he would probably be alive today.

I became the claimant after he died due to his two pending claims, one was his claim under 1151.

The malpractice was overwhelming, and one VAMC tried to cover  up the malpractice at another VAMC.

They failed to cover it up. FTCA settlement and 1151 DIC award- wrongful death.

We believed what the VA doctors said.

They said he had a sinus infection but it was a heart attack and they never treated him for it or told us he had IHD.

One thing every veteran should do is, if they begin to feel their VA care is wrong, is to get an Independent opinion from a non VA doctor with expertise in their disability.

Years after I settled with VA for wrongful death I filed for an additional disease they malpractced on.

BUT I filed for direct SC death and with 3 IMOs I won.

My husband also had DMII from AO and the VA never diagnosed or treated the Diabetes, which was one more disability ,malpracticed on, that caused his death.

I even found a Motive for the malpractice. But 1151ers do not need to find a VA motive for their (VA's) medical incompetence,they just need to prove it happened and caused them additional disability ( or death). I read a widow's 1151 case at BVA this AM, community care was somewhere in the case. But the widow had no proof of malpractice at all.

If my Bill S 221 succeeds in the House ( it passed the Senate with no problem) the VA will be forced to properly account for these quacks.

Then their actual malpractice statistics will be available to Congress and to the public. 

VA saves lives every day- I have no doubt of that and that most every veteran gets superb care from the VA. But my opinion  says" most", not all veterans in the VA health care system.

 

 

[Berta]

MB76 and all-  I did a lot more digging at the BVA and found this:

There are   435   1151 claims at the BVA regarding an unforeseeable event and I was able to find some  whereby the VA sent the veteran to a private hospital where he incurred additional disability:

 

"Viewing the evidence in the light most favorable to the Veteran, and using a referral theory pursuant to that used by the Federal Circuity in Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the Board finds that an unforeseeable event occurred during a VA recommended surgery by a non-VA facility and the unforeseeable event proximately caused the Veteran’s additional disability of severe weakness in the Veteran’s right arm."

The VA had recommended the surgery.

"Entitlement to compensation under 38 U.S.C. § 1151 for a right arm impairment, to include a severed nerve is granted."

https://www.va.gov/vetapp21/files4/21024073.txt

It changes the way I viewed this at first-Ollis V Shulkin went to a Federal Circuit Court.

I only had the CAVC decision.

The Ollis Fed Cir decision (2017) changed everything------I hope I can find it but BVA in their most recent 1151 cases with non VA referrals, uses it in each decision. Such as:

"In this instance, the Veteran had a procedure performed at a private medical facility by a private physician. Therefore, under the law as written he previously would not have been eligible for compensation under section 1151. (As the claimed incident does not fall within the exception under the law indicated at 38 U.S.C. § 1701(6)(E), for noninstitutional extended care services at a private facility where furnished by VA by contractual arrangement.) However, since the Veteran filed his claim, there has been precedential case law issued from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), the holding in Ollis v. Shulkin, 857 F.3d 1338 (2017), which did not change the language of the law on medical negligence actions for treatment consequences performed by a third-party provider or at a non-VA facility, but significantly expanded the definition of “proximate causation” for claims under 38 C.F.R. § 1151. To establish a section 1151 claim, an additional disability must have been both actually caused, and proximately caused by qualifying treatment. One means to show proximate causation is negligence. See generally, 38 C.F.R. § 3.361(d)(1). The second way is to show that disability originated from “an event not reasonably foreseeable.” See 38 C.F.R. § 3.361(d)(2). More specifically, the Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under 38 U.S.C. § 1151(a)(1)(B), 38 U.S.C. § 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 38 U.S.C. § 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."

 

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right hip replacement is granted.

FINDING OF FACT

1. The Veteran was referred to a non-VA medical provider, where he underwent a March 2008 right hip replacement.

2. The additional disability incurred as a result of the March 2008 surgery was the result of an event not reasonably foreseeable.
https://www.va.gov/vetapp19/files11/19189893.txt

ORDER

"Entitlement to compensation under 38 U.S.C. § 1151 for any cervical and/or thoracic spine condition is granted.

REMANDED

Entitlement to an initial rating in excess of 40 percent for lumbar disc disease with history of laminectomy (low back disorder) from October 8, 2004, (exclusive of the period in 2009 when a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30) is remanded.

Entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2009, is remanded.

Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to November 1, 2009, is remanded.

FINDINGS OF FACT

1. The Veteran was referred to a non-VA medical provider, where he underwent a total disc arthroplasty at L4-5 and L5-S1 on May 5, 2009.

2. The additional disability incurred as a result of the May 2009 surgery and was the result of an event not reasonably foreseeable."

https://www.va.gov/vetapp21/files4/21022558.txt

To establish a section 1151 claim, an additional disability must have been both actually caused, and proximately caused by qualifying treatment.  One means to show proximate causation is negligence.  See generally, 38 C.F.R. § 3.361(d)(1).  The second way is to show that disability originated from “an event not reasonably foreseeable.”  See 38 C.F.R. § 3.361(d)(2).  More specifically, the Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under 38 U.S.C. § 1151(a)(1)(B), 38 U.S.C. § 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 38 U.S.C. § 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, the November 2002 VA examining physician at the Phoenix, Arizona VA Medical Center (VAMC) requested that the Veteran have an EMG test conducted and he was referred by VA on a fee basis to a private physician who performed the procedure.  A November 2002 VA examination indicates that the examiner recommended that he have “an electromyelogram of the left upper extremity and, if possible, the area of the symptoms.”  Moreover, the November 2002 report documenting the results of the subject EMG states that the “referring physician” is “VAMC/Ratings,” and a December 2003 letter by the physician who performed the EMG procedure stated, “…I test ratings patients for the VA only.  I do not treat or render final[] diagnoses.”  

Based on the foregoing, the Board finds that the subject November 2002 EMG test was proximately due to the November 2002 VA examiner’s request.  Accordingly, the remaining questions are whether there is an additional disability, as claimed by the Veteran, and whether any such disability was proximately caused by an unforeseeable event associated with the November 2002 EMG test."

https://www.va.gov/vetapp19/files6/19144618.txt

I am so glad that you brought up this subject. I dint think we ever addressed it here in decades and to find that the Ollis Fed Cir decisions changed everything was quite a shock to me.

It seems evidence that since Ollis, if the VA recommends any non VA treatment or surgery, that is found to have caused additional disability to the veteran ( that is a ratable condition) they would have to apply the criteria of Ollis Fed Cir to the claim!!!!!!!!!!

Now I wonder what happened to legitimate 1151ers who were denied in the past but who now would fall under Ollis.....? Since there is notime limit on filing 1151 claims, would they ever find out if they should refile ,citing the Ollis decision?

I will check for any DIC claims under Ollis.

Do you have a personal situation which this could regard?

 

 

 

[Berta]

Thank you again for this topic!!!!!!!!!!!!!!!!!!!

I found more cases that BVA remanded or awarded due to the Ollis Fed Circuit case:

Added Remanded and another award 1151 non VA treatment

https://www.va.gov/vetapp21/files3/21014183.txt

( VA referred to private treatment, after which veteran suffered seizures)

https://www.va.gov/vetapp18/files4/18100987.txt

( VA referral to non VA entity - additional disability on remand)

https://www.va.gov/vetapp18/files9/18134829.txt

(Veteran was referred under Fee Basis to a non VA hospital can claimed residuals from hip replacement surgery)

and

"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."

https://www.va.gov/vetapp21/files5/21027653.txt

I am stunned at some of these cases. It is good to have this info here!!!!!

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[Vync]

Hey @Berta,
The "unforseeable event" approach per Ollis v. Shulkin sounds very intriguing. Not to take away from the original post, but I am curious if the "unforseeable event"  approach might be able to be applied elsewhere. For example, as part of an FTCA or to obtain SC or an increase...

The VA cardiologists told me that they did not feel the migraine meds I was given would cause a heart attack was very rare due to the very low statistical chance. Sounds like an "unforseeable event" to me because nobody expected it to happen. I am now SC for the heart attack thanks to an "more likely than not" IMO by a non-VA specialist, so I am glad you recommended getting an IMO. My FTCA for it has been in the hopper since early April, but I have only received the usual form letter saying it has been received. A while back, I remember us talking about the possibility of getting separate benefits for 1151 when already SC for the same disability. Everyone I talked to at the VA and a couple of law offices said that if I am already SC for a condition then filing an 1151 for the same condition would be moot and not provide any additional benefits. Have you heard if it is possible to do this and if there have been any successes?

Back to the original post, I helped a veteran a while back and his VA referred him to community care for back surgery. His surgical wound got infected and required more surgeries to clean it out. He is still suffering in a bad way. He is already SC for his back, but wonder if he might be able to file an 1151 under the Ollis v. Shulkin approach.

[Berta]

I never used "unforeseeable event" in my 1151 and FTCA cases.

But all of my lay medical evidence supported those claims, because I took the VA step by step from a 1988 misdiagnosis up to th autopsy findings which confirmed my lay medical opinion.In those days no lawyer would help me and I could not obtain an IMO.

It was a lot of work but like Beverly Nehmer ( the Nehmer Court Order) I went the whole 9 yards.

We had an "unforseeable event 1151er here not too long ago- who succeeded after probably a decade of trying and there might be others here too.

As to you question on 1151 and direct SC for same condition, I posted the OGC opinion on that and sent it in with my last claims, but the VA has ignored it-

I will post the info again.

[Berta]

It is # 8 in the 1997 opinions

https://www.va.gov/ogc/opinions/1997precedentopinions.asp

By the way- re OGC- they have been backlogged by the Covid situation and have not made any precedent decisions since 2019.

The OGC VA ( in my opinion the Brains of the VA) does a lot of work in many respects- I learned, since they also handle the accreditation program for those who seek to become accredited agents, that they also have many complaints on some agents that they need to address.

That is all backlogged as well.

 

 

 

[FormerMember]

Vync and all Veterans beware-

Please think twice when filing SF95/FTCA claims. If you are SC for any disability and receiving compensation, and they grant the FTCA with a monetary award, your VA compensation will cease until they recoup the money they paid you in the FTCA settlement.

It falls in the §4.14 clause about no pyramiding, technically. Basically, you can only be remunerated once for your disability(ies) with govt. funds. I had this happen to a client before they sought my representation. They received a $100,000 FTCA settlement and poof- VA comp. ceased until the amount ($100,000) was recouped (about 3 years) whereupon the VA comp. began again. 

[Carl the Engineer]

2 hours ago, asknod said:

Vync and all Veterans beware-

Please think twice when filing SF95/FTCA claims. If you are SC for any disability and receiving compensation, and they grant the FTCA with a monetary award, your VA compensation will cease until they recoup the money they paid you in the FTCA settlement.

It falls in the §4.14 clause about no pyramiding, technically. Basically, you can only be remunerated once for your disability(ies) with govt. funds. I had this happen to a client before they sought my representation. They received a $100,000 FTCA settlement and poof- VA comp. ceased until the amount ($100,000) was recouped (about 3 years) whereupon the VA comp. began again. 

I agree,

I tried explaining this to the "ear plugs" class action suit.  If you win and you are also getting comp, they are going to get their money back.

Just sayin,

Hamslice

Just went through this with my wife.  Look up subrogation with or without the VA.