allegations are in liability work in other words are they allegations of negligence or is your client relying on this what's the claim as to what caused this in other words you know this comes to us and serve an abstract posture which i think makes it very difficult to address the legal question and that that has been historically a problem in these veterans cases of that sometimes we're asked to decide abstract legal questions without knowing what the actual context is what is the factual context what is the  liability what is the event that is said to lead to liability or i can appreciate your honor's concern in this regard and this case as in many veterans cases there is the difficulty that there has not been complete factual development at the v not a good candidate for that procedure either that he was not an appropriate candidate and once ill advised in that regard or that he was directed to an inappropriate physician the record here is not particularly well developed as to what precise recommendations were provided by the v a physician dr rotman at the national v a to mr alice his testimony it would appear to establish that she understood the v a to be advising him to receive this specific procedure but this is the specific procedure that was appropriate for him in this context that the v a was asking him to get this procedure done elsewhere and that he was to go back to who's internal and his general cardiologist for a local referral which was the veteran did not have legal representation up until a certain point indeed the case was initially briefed to the veterans court without representation when legal representation was suggested actively by the veterans court representation in to answer a series of specified questions by the veterans court and so you are correct the veterans court's decision notes in several places the various items had not been raised expressly by the veteran previously  to worry about that it's we're not dealing with negligence but the unforeseen consequence that is a little complicated and doesn't need only fit into the proximate cause analysis as you say i mean because the notion that something is unforeseen certainly not understanding i thought that your theory was that insofar as we're dealing with unforeseen consequences that the statute doesn't impose a proximate cause requirement as to the event reasonably foreseeable your honor there is a proximate cause requirement eleven fifty one sets out to causal elements eleven fifty one a one begins with a general cause requirement that the cause of the disability be hospital care medical or surgical treatment to that first causal element it appears quite clear especially given footnote eight in the veteran's court's opinion that the veterans court was applying the proximate cause test to what used by the statute in general cause requirement in eleven fifty one and that  known foreseeability thing or what is the significance that the other calls of a quorum it may require less your honor it's a function of who the actor is or what in focus of that particular case be by v a personal of the view personal need not actually be the actors for the second proximate cause element that we are looking for a general cause being a medical treatment by  notion here is that the v a may hold some level of liability even where v a medical treatment is not itself the immediate direct and proximate cause as those terms are generally understood not whether medical treatment added in in two places the general cause and the proximate cause the prior eleven fifty one had it was a result of language that would appear to correspond generally to the general cause language here that's also consistent with this court's decision that language has to have some cutoff it can't go too far for long remote consequences brunner governor also though was very clear to say that that as a result of language did not impos proximate cause requirement in fact the supreme court and brumby carter said of the government's suggestion that that as a result of language should be understood as a proximate cause requirement was implausible well right in but then the amended the stat problem here how does that benefit chip how is it how are the two cause requirements different is your theory that the the that the negligence this described here could be negligence of somebody or as to the cost requirement on the face a statute in the general cause requirement needs to be that the disability is caused by a medical treatment as one of the specific things that could be caused by here the medical is the actor tied to the specific cause i'm referring to when we have a general cause that's a medical treatment proximate cause is by an event the two causes are linked to different things in eleven fifty one the cause must be medical treatment proximate cause must be an event a vent and medical treatment are not necessarily the same thing the medical treatment here is dr rotman's long term of a veteran at the national v a for a decade long span and in particular that culminated in two thousand and seven with dr reitman telling a veteran you need this procedure and go get this procedure done that is a cause of the ultimate disability that cause is the medical treatment by dr robin the event not reasonably forseeable is the proximate cause the event here is the severance of the front of the event isn't dr rotman's referral nearer very clearly that severance that specific act is the proximate cause of the disability so we're looking at two separate cars requirements and two separate set it aside and by the way this was correct then you lose i mean we were may declare that there was  speak about the two different causes and then i think you've correctly stated that the two bases but you would still lose or why wouldn't that be harmless or it wouldn't be a harmless something that perhaps both require but that doesn't necessarily make them the same corrector there is always a concern in law as to how to play general cause requirement clearly by using a cause and proximate cause it doesn't make any difference whether one of the cause requirement is more liberal in the proximate cause or you have to have proximate cause anyway then the fact that the two have been conflated is  harmless error but you seem to be saying that the cause of the proximate cause requirement are being applied to different actions right yes or no respectively they don't apply does it different actions that that they apply to in the case of negligence it's the same action right in the case of not what is it it may actually be the same action but even that is not necessarily the same action because the one actually be a medical treatment in a broader sense the specific still in some way tied back to fault of the b s a the general causes more than the general medical treatment this court is not have an opportunity to fully distinguish those are a couple helpful veterans court through says though in particular the con two case there can be helpful as the concert case involved referral and those of us do a good job of doing that as well i mean we have a situation or you have a v a receiving medical help you have cause and he grabs on to the grabber all falls down and then you have a foreseeability issue and that's the proximate cause issue it is if that doesn't get us kind of spell out the differences as a general matter mashed arrays as fast as he as he cause the militias correct your honor and as a result we would need to go back to look to the specific proximate cause the sufferance of the front a nerve to see if that is properly characterized as not reasonably forseeable and we some valid are still not understanding what different act the two tests are being applied to in this case would it were that the proximate cause test says you have to look to the negligence in the event not reasonably subsection b of would then read the proximate cause of the disability or death was an event not reasonably foreseeable there is nothing at all if you want a one subsection b and that ties that event not reasonably foreseeable to anything a i mean if some if this individual on his own went to a private doctor and suffered an event that was not reasonably foreseeable that the a would be responsible for the viewer would not be responsible as a result of eleven fifty one a one distinct causal elements the one is are we under the umbrella of the that's the general cause the specific causes what exactly now happened is that an event not reasonably forseeable here that event happened outside scenario where there is any agency relationship created with a private physician such that it would still be considered a fault on the part of the department but again for our purposes this all i think is much clearer if we focus on a longer if you want a want to be  is my is my statement correct or incorrect there is no difference between cause and proximate cause in so far as a is so i disagree there are still two separate requirements and you may be looking at two and in particular the but we're looking at general costs was this part of the medical treatment now let's look at specifically what happened who is the who is directionally at fault you may not necessarily have the same after they are not just a single inquiry the court at the statute doesn't apply to the remote consequences of conduct there's no dispute in that regard regardless of whether which problem you look at regardless of whether or not you're talking about conservation or proximate cause it doesn't apply when where  ate but it would be exist and be exist for other situations and that's what we're looking at here right but you still have to meet causation you still have to show causation and that means if what we're talking about is a remote consequence it doesn't fall within the  statute and that's what the veterans court said here regardless our job is to see whether veterans court applied to write law right and that's mostly our job yet so what do i understand you're saying if the court had said no therefore there's no call eyes staff right there that could be the end of it but how do you deal with footnote eight a citation of metropolitan edison and the other statements that seem to use language it comes from and right and that's because that language applies to the causation aspect as well and all the veterans court was saying in that footnote is with respect to remote consequences that idea applies whether or not you're talking about  the event is and that aspect of proximate cause is part of the cause patient on now you know your brief confuses me a little bit because your alternative argument is that cause and proximate cause are in fact the same thing right and i think to myself actually it's anything that suggests to me that maybe the cripple though was confused because i don't think the statute intends them to get the same well that they are the same thing with respect to the remote consequences and that's our point now that there are what difference does it make that causation element may be a looser requirement right well and that was the argument an additional argument that we made in our brief we took their argument to be that they could establish proximate cause as well and we said well it a one is negligence not right that's what was added in the amendment after gardner and it was designed to address the fault issue here but i don't think you're addressing my night question my question is with respect to a which deals with  specifically a requirement in the statute and what difference does it make whether the hall's requirement as a is is different from proximate cause but there's a specific proximate cause requirement here right and that and that was an argument we made in our brief as well because we thought that they were there you would agree with that yes yes yes we do agree with that that right so the question is is it different with respect to be right and i think the answer is yes so what the statu contemplates is a situation where the v a does a surgery does everything right but a side effect occurs that isn't typical and can't be reasonably forseen so in essence it contemplates a situation where there's no fault on the v a but something on forseeable occurs but even in that situation it doesn't cover the remote consequences of the vs conduct well has to be a test that is different from the traditional proximate cause test because proximate cause as the consequence has to be proximate cause has within it notions of foreseeability and be specifically imposes liability when there's no foreseeable right but you still have to get through the causation element before you got it but in the causational it can't be the same as proximate cause and  simply makes no sense right talk about proximate cause in relation to unforeseen consequences but it is the same with respect to const to proximate cause when you talk about remote consequences it is that's what the  court said in gardner in the courts and in vegas that causation that the statues never intended to cover a situation where you're talking about remote consequences of what the v a did and that's the situation we have here and that's the end of lot well suppose suppose suppose there was no negligence at performing the maize operation ok and let's assume that the v a said go have a maze procedure and that as a result of that v recommendation has the maze procedure and there is an unforeseeable consequences of the nerves be accept why isn't that doesn't that satisfy the cause requirement of the statute well that's  to too remote you have to address the question of is this remote consequence of what the v a did a letter and i or vessel has got in my hypothetical there's a direct chain of causation between the recommendation to have the maze procedure the performance of is hospital care medical or surgical treatment or examination for example but your hypothetical would be a lot closer situation it may not under your hypothetical be a remote consequence of the conduct but that's not what we have here we have here  situation where mr wallace asked about the ms procedure he discussed multiple options and multiple recommendations with the v a he then went to his private doctor and discussed options and his private doctor referred him to the surgeon ultimately did the surgery that is simply too remote to fall within the ambit of the statute i don't see any finding by the board or the veterans or that the v a was the cause of this having the or cause proximate cause oh don't we still have a harmless error situation here if we're able to separate if it was separate and say ok well you applied a proximate cause under the guise of cause you're proximate cause finding is correct and therefore the veteran still loses because it's been harmless or right although if we send it back if we determine that the proximate cause  was not satisfied right and we look at it a little bit differently we have a sit on think there was air here but another way to look at it is is to say that because we're talking about remote consequences here  well know you you're the veterans for truth really didn't address fault on her cause they just talked about the remote aspect of what occurred here and and this court has said that cause doesn't include a fault element within that idea generally evernote right absolutely sure if you have multiple actors intervening in a chain of events yes then that is remote that takes it far removed from what the  but could be multiple actors but the original recommendation for the maze procedure could have been what led to having these procedure and having the maze procedure may have resulted in this perhaps allegedly unforeseen consequences of nerves as well right that's why we have a limitation on the on on what cause means as a veteran court said in the philosophical sense the causes of an event go back to the dawn of human events so you know we could say that the and get the procedure it wouldn't matter because there's intervening events well just like the idea intervening alan i think right now the intervening events obviously have to relate to the ultimate final action right and here if you look at aspect of proximate cause remote consequence aspect is true with respect to causation and that's what the court held th you it would appear that the v a is attempting to impose a broad remote consequences test on anything to do with the care regardless of the guess noted that the brown v garner remote consequences language would appear to apply to the current causal language that doesn't mean it's a substitute for looking to the statute does not forgive the veterans court for ignoring what is cause for says what is proximate cause and attempting instead to use remote consequences as a big proxy for this actual statutory test when looking to whether there were actually that's the test that ron and garner in vegas gave it in fact the fact pattern of this case veteran it goes to v a v a provides a recommendation a veteran says go get this procedure done veteran get set procedure done the result is disability that is very direct there are not a whole bunch of intervening stops the v a is careful to point out that there may be some question about who are these specific doctors to whom he has referred the focus here is what is the medical treatment back to the v a and that the v a has to have some role in what happened well your honor that's the general cause element was this caused by medical treatment of the v a yes in fact i was doctor rotman as part of