Veteranclaims’s Blog

June 5, 2018

Single Judge Application; 38 U.S.C. § 1151(a)(1)(B), delay is an “unforeseeable event”;

Excerpt from decision below:

“Eleven years ago, United States Marine Corps veteran Charlie L. Billiot was referred to a private hospital by VA for a total left knee arthroplasty. After the procedure, he wasn’t given any instructions on how to continue with therapy, but a home health care worker recommended a private rehab clinic. He finally started therapy for his knee at that clinic almost four weeks after his discharge from the hospital, a delay which VA’s own examiner concluded contributed to the veteran’s current arthrofibrosis.
The question in this appeal, which is timely and over which the Court has jurisdiction,1 is whether the Board’s determination that, under 38 U.S.C. § 1151(a)(1)(B), that delay was not an “unforeseeable event” was clearly erroneous. Because actions by VA (and, by extension, private actors to which VA has referred claimants) are presumed regular and the failure to provide timely therapy was irregular, the Court holds that the Board’s determination was clearly erroneous, reverses the Board’s decision, and remands this matter so the Board may expeditiously award the veteran the benefits he deserves.
1 38 U.S.C. §§ 7252(a) and 7266(a).

=======================

 

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0400
CHARLIE L. BILLIOT, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Eleven years ago, United States Marine Corps veteran Charlie L. Billiot was referred to a private hospital by VA for a total left knee arthroplasty. After the procedure, he wasn’t given any instructions on how to continue with therapy, but a home health care worker recommended a private rehab clinic. He finally started therapy for his knee at that clinic almost four weeks after his discharge from the hospital, a delay which VA’s own examiner concluded contributed to the veteran’s current arthrofibrosis.
The question in this appeal, which is timely and over which the Court has jurisdiction,1 is whether the Board’s determination that, under 38 U.S.C. § 1151(a)(1)(B), that delay was not an “unforeseeable event” was clearly erroneous. Because actions by VA (and, by extension, private actors to which VA has referred claimants) are presumed regular and the failure to provide timely therapy was irregular, the Court holds that the Board’s determination was clearly erroneous, reverses the Board’s decision, and remands this matter so the Board may expeditiously award the veteran the benefits he deserves.
1 38 U.S.C. §§ 7252(a) and 7266(a).
2
I. ANALYSIS
Individuals under the care of VA health care professionals or their agents are entitled to
receive benefits for a death or disability caused by “an event not reasonably foreseeable” that is
the result of VA health care treatment.2 This requires that the veteran show “proximate cause
between VA medical care and the treatment, and proximate cause between the unforeseeable event
and the disability.”3 Unlike subsection A, entitlement to benefits under 38 U.S.C. § 1151(1)(B)
doesn’t require a showing of fault.4 To reverse the Board’s determination, as the veteran asks, the
Board must have “performed the necessary fact-finding and explicitly weighed the evidence” and
the Court must be “left with the definite and firm conviction that a mistake has been committed.”5
Here, the Board spent most of its decision addressing whether VA negligently caused the
veteran’s arthrofibrosis but, as discussed above, VA’s fault or lack thereof is irrelevant if the
disability or death is caused by an unforeseeable event caused by VA treatment. As to the delay in
the veteran’s post-operative treatment, the Board found that the veteran’s arthrofibrosis “was
reasonably foreseeable . . . if he did not adhere to the home exercise plan provided to him by the
hospital.”6
The Board’s decision is a curious one. The Board spends many pages explaining how VA
wasn’t negligent, fails to explain why the veteran’s therapy was delayed, and fails to cite any
evidence that he failed to follow his home exercise plan. In fact, no one, including the government,
can explain the delay in the veteran’s therapy. The Board stated that it was “unclear why
arrangements for outpatient physical therapy were not made earlier[.]” 7 A March 2012 VA
examiner noted that “[i]t does appear that [the veteran] was late getting started on his physical
therapy after his discharge from the hospital.”8 An April 2012 VA addendum opinion stated that
the examiner was “unable to verify that [the veteran] received any physical therapy between the
2 38 U.S.C. § 1151(a)(1)(B); see also Ollis v. Shulkin, 857 F.3d 1338, 1345 (Fed. Cir. 2017).
3 Id. at 1346.
4 Id.
5 Deloach v. Shinseki, 704 F.3d 1379, 1380 (Fed. Cir. 2013); see also Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004).
6 Record (R.) at 11.
7 R. at 11.
8 R. at 348.
3
time of his” knee replacement “until he was seen by a therapist on [November 28, 2007].”9 It’s
difficult to understand how an event that no one, especially VA and its own examiners, can even
begin to explain could ever be “reasonably foreseeable.”
This is especially true considering the presumption of regularity. Under that presumption,
VA and its employees are presumed to properly perform their official duties without clear evidence
to the contrary. 10 Ordinarily, this presumption works as an evidentiary shield for VA when
claimants accuse it of failing to properly perform a duty.11 But the presumption cuts both ways.
Veterans are entitled to presume VA will properly discharge its duties and its failure to do so is an
unforeseeable event unless (unlike here) there is some explanation for the failure to follow the
regular procedure.
It’s also difficult to understand why the Board cited the veteran’s failure to follow his postoperative
instructions without citing any evidence to support such a statement. Although VA may
deny a claim due to a claimant’s failure to follow medical instructions,12 the Board did not apply
that regulation and failed to cite any evidence implicating it.
The government’s brief is even less helpful than the Board’s decision in this regard. The
veteran’s initial brief clearly sets forth his argument: the Board’s decision warrants reversal because
the post-operation delay in starting therapy was an unforeseeable event. The government’s
response? Remand is warranted because there’s an incomplete record. The government fails to
respond in any meaningful way to the veteran’s arguments. Yet, “[w]here [an] appellant has
presented a legally plausible position . . . and the Secretary has failed to respond appropriately, the
Court deems itself free to assume . . . the points raised by [the] appellant, and ignored by [VA], to
be conceded.”13 Although the Court has addressed this appeal on the merits, it reminds the
government of its duty to appropriately respond to the arguments of this nation’s veterans and will
address its arguments no further.
9 R. at 312.
10 See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Crain v. Principi, 17 Vet.App. 182, 186 (2003).
11 See, e.g., Davis v. Principi, 17 Vet.App. 29, 36-37 (2003).
12 38 C.F.R. § 3.361(c)(3) (2017).
13 MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1991).
4
II. CONCLUSION
The Board’s decision was clearly erroneous. As discussed above, the Board failed to
explain how the post-operation delay the veteran suffered was reasonably foreseeable, the
government failed to address the veteran’s arguments entirely, and the medical evidence of record,
particularly the April 2012 opinion, establishes that the delay proximately caused the veteran’s
current arthrofibrosis. So, the Court is “left with the definite and firm conviction that a mistake has
been committed” and reversal is warranted.14
On remand, the appellant may submit additional evidence and argument15 and the Board
must consider any such additional evidence or argument. 16 The Board must also proceed
expeditiously,17 especially bearing in mind the veteran’s age and health condition.
The Board’s September 25, 2017, decision denying the veteran compensation under
38 U.S.C. § 1151 for arthrofibrosis of the left knee is REVERSED and this matter is REMANDED
to the Board for the award of benefits.
DATED: June 4, 2018
Copies to:
Michael C. Spinnicchia, Esq.
VA General Counsel (027)
14 Deloach, 704 F.3d at 1380; see also Gutierrez, 19 Vet.App. at 10.
15 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
16 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
17 38 U.S.C. §§ 5109B, 7112.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.