Ollis v. Shulkin, 2017 U.S. App. LEXIS 9176

Background

Paul Ollis, a veteran with atrial fibrillation, sought VA disability benefits under 38 U.S.C. § 1151 after suffering phrenic-nerve damage and diaphragm paralysis from a privately performed mini‑MAZE procedure in 2007.
A VA cardiologist (Dr. Rottman) had recommended the mini‑MAZE as an available option and noted it could be performed at non‑VA institutions; VA did not refer or contract with the private surgeon (Dr. Hall) or hospital.
Ollis paid privately (and used private insurance) for the procedure performed by Dr. Hall at Methodist Medical Center; he did not sue the private providers.
The VA denied § 1151 benefits; the Board and the Court of Appeals for Veterans Claims affirmed, finding the injury too attenuated from VA conduct (citing Viegas).
The Federal Circuit affirmed in part, vacated in part, and remanded: it held that (1) the Veterans Court erred by not analyzing whether VA care proximately caused the private procedure (for § 1151(a)(1)(B) referral theory), and (2) remanded to determine (a) whether VA recommended/referred caused the veteran to undergo the mini‑MAZE and (b) whether the unforeseeable event and resulting disability are shown.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether VA negligence in recommending or referring for the procedure can satisfy § 1151(a)(1)(A)	Ollis: VA recommendation/referral caused him to undergo the mini‑MAZE and VA was negligent, so VA fault proximately caused his disability	Government: VA conduct was too remote; no agency/contract with private surgeon; no VA fault shown	Court: VA‑fault theory uses ordinary proximate‑cause medical malpractice principles; remanded to consider whether VA recommendation/referral was negligent and proximately caused Ollis to undergo the procedure
Whether an unforeseeable event during a private procedure can trigger § 1151(a)(1)(B) in a referral context	Ollis: an unforeseeable injury (phrenic nerve damage) during the mini‑MAZE qualifies even though procedure was private because VA recommended the procedure	Government: § 1151 requires that VA care "cause" the relevant treatment; if treatment was private, causation fails	Court: § 1151(a)(1)(B) permits recovery for unforeseeable events but requires a two‑part chain: (1) VA care must proximately cause the medical treatment (here, the mini‑MAZE), and (2) the unforeseeable event during that treatment must proximately cause the disability; remanded to apply this framework
Scope of the statute’s causation requirement (remote consequences)	Ollis: VA recommendation leading to private treatment is not too remote	Government: statute excludes remote consequences; VA conduct here is remote	Court: causation includes a remoteness/lesser‑proximate‑cause limitation (consistent with Gardner and Viegas); VA must have proximately caused the treatment, not necessarily the specific injury that followed
Whether VA’s failure to notify Ollis that a private referral could affect § 1151 eligibility violated due process	Ollis: had a protected property interest in § 1151 benefits and VA should have warned him that private treatment might forfeit coverage	Government: no due process violation; no entitlement to advance notice of conditions that might later affect future benefit eligibility	Court: affirmed Veterans Court — no due process right to pre‑injury notice about potential future effect on § 1151 benefits (property interest exists only once claim arises)

Key Cases Cited

Brown v. Gardner, 513 U.S. 115 (1994) (Supreme Court held § 1151’s "as the result of" language requires causation but not VA fault)
Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir.) (2013) (statute does not cover remote consequences; injury from VA‑provided restroom equipment was not remote)
Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.) (2009) (veterans’ benefits constitute a protected property interest; due process required in adjudication)
Paroline v. United States, 134 S. Ct. 1710 (2014) (discussion of proximate cause and foreseeability in limiting legal liability)