United States Court of Appeals 

for the Federal Circuit ______________________ 

PAUL L. OLLIS,

Claimant-Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2016-1315

______________________ 

Appeal 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.

______________________ 

Decided: May 26, 2017

______________________ 

PAUL 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.

LOREN 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.
2 OLLIS v. SHULKIN

KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; MARTIE 

ADELMAN, BRIAN D. GRIFFIN, Office of General Counsel, 

United States Department of Veterans Affairs, Washington, DC.

______________________ 

Before DYK, REYNA, and STOLL, Circuit Judges.

DYK, Circuit Judge.

Paul 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 atrial fibrillation and claims a 

disability resulting from complications of a heart procedure to treat that condition. The procedure (called miniMAZE) 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. 

BACKGROUND

Mr. Ollis was diagnosed with atrial 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 private cardiologist. 

During a 2007 check-up conducted by the VA, 

Mr. Ollis met with a nurse practitioner and inquired 
OLLIS v. SHULKIN 3

about a MAZE procedure1 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 miniMAZE. 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. 

Mr. 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 

 

1 As the Veterans Court explained, a “‘Maze’ procedure is the ‘surgical division of the normal conduction 

pathways between the sinoatrial node and the atrioventricular node by a series of incisions in the left atrium to 

create a maze of conduction pathways; its purpose is to 

allow a normal impulse to activate the atrium while 

eliminating macroreentrant circuits; done for the relief of 

atrial fibrillation.’” J.A. 2 n.6 (quoting Dorland’s Illustrated Medical Dictionary 1517 (32d ed. 2012)). 
4 OLLIS v. SHULKIN

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.2 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. 

There 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 § 1151(a), 

[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, 

 

2 Since the procedure was performed by a private 

doctor, in a non-VA facility, and paid for by private insurance, we are not dealing with a situation where a private 

physician acts as an agent of the VA.
OLLIS v. SHULKIN 5

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). 

The 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.

Mr. Ollis petitions for review. We have jurisdiction 

under 38 U.S.C. § 7292.

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. 38 U.S.C. § 7292. We “decide 

all relevant questions of law, including interpreting 

constitutional and statutory provisions,” id. § 7292(d)(1), 

and our review of these questions is de novo, e.g., Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).

But, except to the extent that an appeal presents a constitutional issue, we “may not review (A) a challenge to a 
6 OLLIS v. SHULKIN

factual determination, or (B) a challenge to a law or 

regulation as applied to the facts of a particular case.” 38 

U.S.C. § 7292(d)(2). If the decision by the Veterans Court 

is not in accordance with law, we can reverse, modify, or 

remand. Id. § 7292(e)(1).

I 

Section 1151 has a long history and is used “typically 

to provide benefits to veterans for nonservice related 

disabilities” resulting from VA medical care. Brown v. 

Gardner, 513 U.S. 115, 116 n.1 (1994), abrogated in part

by statute, Pub. L. No. 104-204, § 422(a), 110 Stat. 2874, 

2926–27 (1996); see also Viegas, 705 F.3d at 1381–82. The 

provision originated with the World War Veterans’ Act,

1924, Pub. L. No. 68-242, § 213, 43 Stat. 607, 623. The 

provision was amended several times thereafter and 

renumbered in 1991. See Department of Veterans Affairs 

Codification Act, Pub. L. No. 102-83, §§ 4(a)(1), 5(a), 105 

Stat. 378, 403, 406 (1991). The 1991 version was reviewed 

by the Supreme Court in Gardner. Throughout its various 

iterations, including the version at issue in Gardner, the 

provision provided benefits if a veteran “suffered an 

injury, or an aggravation of an injury, as the result of

hospitalization, [or] medical or surgical treatment.” 38 

U.S.C. § 1151 (1994); 38 U.S.C. § 351 (1982); 38 U.S.C. 

§ 351 (1958); see 38 U.S.C. § 501 (1934). 

Since at least as early as 1938, VA regulations interpreting the provision had required fault by the VA. The 

regulations provided that “[c]ompensation is not payable 

for either the usual or the unusual after results of approved medical care properly administered, in the absence 

of a showing that the disability proximately resulted 

through carelessness, accident, negligence, lack of proper 

skill, error in judgment, etc.” 38 C.F.R. § 2.1123(c)(4) 

(1938); see also 38 C.F.R. § 3.123 (1956). In 1961, VA 

altered this language to provide that “the disability 

proximately resulted through carelessness, accident, 
OLLIS v. SHULKIN 7

negligence, lack of proper skill, error in judgment, or 

similar instances of indicated fault on the part of the 

[VA].” Pensions, Bonuses, and Veterans’ Relief, 26 Fed. 

Reg. 1561, 1590–91 (Feb. 24, 1961) (emphasis added). VA 

also amended the regulations to make explicit that the “as 

the result of” language in the statute is a “cause” requirement. Id.

 An opinion by VA’s General Counsel in 1978 then 

opined that the fault requirement in the regulations was 

in error with respect to “accidents.” U.S. Dep’t of Veterans 

Affairs, Op. Gen. Counsel 2-78 (Oct. 25, 1978). After 

analyzing the legislative history of the provision and the 

development of VA regulations implementing it, the 

opinion concluded that Congress had intended recovery 

for a disability deriving from either an accident or some 

form of negligence or fault by VA. The opinion also made 

clear that an accident would not encompass “expected or 

contemplated risks of surgery, no matter how remote.” Id.

at 5. Accordingly VA amended the regulations to provide 

that:

Compensation is not payable for either the contemplated or foreseeable after results of approved 

medical or surgical care properly administered, no 

matter how remote, in the absence of a showing 

that additional disability or death proximately resulted through carelessnes[s], negligence, lack of 

proper skill, error in judgment, or similar instances of indicated fault on the part of the Veterans’

Administration. However, compensation is payable in the event of the occurrence of an “accident”

(an unforeseen, untoward event), causing additional disability or death proximately resulting 

from Veterans’ Administration hospitalization or 

medical or surgical care.

Ratings for Special Purposes, 43 Fed. Reg. 51,015 (Nov. 2, 

1978) (final regulation); see also Ratings for Special 
8 OLLIS v. SHULKIN

Purposes, 43 Fed. Reg. 34,505 (Aug. 4, 1978) (proposed 

rulemaking). In proposing this change to the regulation, 

VA made clear that compensation predicated on an unforeseeable event would not extend to expected or normal 

risks of VA medical care unless there was a showing of 

fault by the VA. See 43 Fed. Reg. 34,505. The amended 

regulation, 38 C.F.R. § 3.358(c)(3) (1993), was the version 

at issue in Gardner. 

In Gardner, the Supreme Court addressed whether 

this regulation, by requiring some level of fault by the VA

(except for unforeseeable events), was consistent with the 

governing text of § 1151, which only required that the 

“injury” occur “as the result of” hospitalization or medical 

treatment. 513 U.S. at 117–20. The Court held that 

neither the “injury” nor “as the result of” language contemplated an element of fault by the VA, and that “it 

would be unreasonable to read the text of § 1151 as imposing a burden of demonstrating [fault] upon seeking 

compensation.” Id. at 120.

In analyzing the “as the result of” language, the Court 

concluded that it “is naturally read simply to impose the 

requirement of a causal connection between the ‘injury’ or 

‘aggravation of an injury’ and ‘hospitalization, medical or 

surgical treatment, or the pursuit of a course of vocational 

rehabilitation.’” Id. at 119. The Court noted that if the

causal connection was meant to require “proximate causation so as to narrow the class of compensable cases, that 

narrowing occurs by eliminating remote consequences, 

not by requiring a demonstration of fault.” Id. 

After the Supreme Court’s decision in Gardner, in 

1996 Congress amended § 1151. See Departments of 

Veterans Affairs and Housing and Urban Development, 

and Independent Agencies Appropriations Act, 1997, Pub.

L. No. 104-204, § 422(a), 110 Stat. 2874, 2926–27 (1996).

In many ways, Congress adopted the prior VA regulation, 

abrogated the decision in Gardner, and explicitly required 
OLLIS v. SHULKIN 9

an element of fault by the VA or an unforeseeable event. 

First, Congress altered the “as the result of” language in 

§ 1151, but still maintained the basic requirement of a 

causal connection between the disability and VA treatment or care—i.e., “the disability or death was caused by

hospital care, medical or surgical treatment, or examination furnished the veteran . . . by a [VA] employee or in a 

[VA] facility.” Id. (emphasis added). 

Second, Congress added a requirement that “the proximate cause of the disability or death was . . . carelessness, negligence, lack of proper skill, error in judgment, or 

similar instances of fault on the part of the [VA] . . . [or] 

an event not reasonably foreseeable.” Id. (emphasis 

added). 

More recently, in Viegas we considered the causation 

requirement of § 1151. There, the veteran went to a 

prescribed aquatic therapy session in a VA facility and 

subsequently sustained an injury when the grab bar in 

one of the restrooms came loose from the wall when he 

attempted to use it. 705 F.3d at 1376. We reversed a 

decision by the Veterans Court that had denied compensation, holding that, even though Congress replaced “as 

the result of” with “caused by,” the cause requirement 

remained substantively unchanged. Id. at 1382. The panel 

found “no indication that [by amending § 1151, Congress] 

intended to impose any additional restrictions on the 

statute’s original causation element.” Id. at 1382. The 

Viegas decision further reaffirmed that under Gardner

this cause requirement means that coverage “does not 

extend to the ‘remote consequences’ of the hospital care or 

medical treatment provided by the VA.” Id. at 1383. But 

Viegas held that the veteran’s injury from the faulty grab 

bar was not a remote consequence of VA medical treatment since using the restroom is part of medical care and 

the injury stemmed from VA’s failure “to properly install 

and maintain the equipment necessary for the provision 

of his medical care.” Id.
10 OLLIS v. SHULKIN

II

The question presented in this case is how to construe

the statutory requirements of § 1151 when the disabilitycausing event occurred during a medical procedure not 

performed by a VA doctor or in a VA facility. More specifically, we consider the application of § 1151 to referral 

situations. 

A. Negligence by VA

A theory of recovery under § 1151 based on negligence 

by the VA is straightforward. See § 1151(a)(1)(A). The 

claimant must show: (1) a causal connection between the 

disability and “hospital care, medical or surgical treatment, or an examination furnished the veteran . . . by a 

[VA] employee or in a [VA] facility,” and (2) that “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the [VA]” 

was “the proximate cause of the disability.” § 1151(a)(1). 

Thus, this theory incorporates the fault element rejected by the Supreme Court in Gardner but subsequently 

added by Congress when it amended § 1151. The standard 

for recovery is similar to the usual standard used for 

medical malpractice cases. It requires that VA medical 

care actually cause the claimant’s disability (a traditional 

but-for causation requirement, as opposed to the disability stemming from “willful misconduct” or the natural 

progress of the claimant’s preexisting disease, injury, or 

condition, see 38 C.F.R. § 3.361(c)), and that, in providing 

such care, VA’s failure “to exercise the degree of care that 

would be expected of a reasonable health care provider”

proximately caused the disability. 38 C.F.R. 

§ 3.361(d)(1)(i); see also, e.g., 1 David W. Louisell & Harold Williams, Medical Malpractice § 8.07; 1 Steven E. 

Pegalis, American Law of Medical Malpractice §§ 3:1, 5:1 

(3d ed. 2016). 
OLLIS v. SHULKIN 11

The proximate cause requirement of § 1151(a)(1)(A)

applicable to VA-fault claims thus incorporates traditional tort law notions of proximate cause. While the precise 

meaning and formulation of proximate cause in tort law is 

subject to significant debate, its purpose is generally 

understood to limit an actor’s legal responsibility. See 

Black’s Law Dictionary 265 (10th ed. 2014) (defining 

“proximate cause” as “[a] cause that is legally sufficient to 

result in liability”); Dan B. Dobbs et al., The Law of Torts 

§ 198 (2d ed. 2016 update). Proximate cause limits legal 

responsibility to “those [but-for] causes which are so 

closely connected with the result . . . that the law is 

justified in imposing liability.” W. Page Keeton et. al., 

Prosser & Keeton on Torts § 41, at 264 (5th ed. 1984); see 

also Paroline v. United States, 134 S. Ct. 1710, 1719 

(2014) (“Every event has many causes . . . [s]o to say that 

one event was a proximate cause of another means that it 

was not just any cause, but one with a sufficient connection to the result.”).

As the Supreme Court has recognized, a hallmark

formulation of proximate cause defines its scope in terms 

of foreseeability, extending only to those foreseeable risks

created by the negligent conduct. See Paroline, 134 S. Ct. 

at 1719 (“Proximate cause is often explicated in terms of 

foreseeability . . . .”) (emphasis added); see also Dobbs et 

al., § 198 (“The most general and pervasive approach to 

. . . proximate cause holds that a negligent defendant is 

liable for all the general kinds of harms he foreseeably

risked by his negligent conduct and to the class of persons 

he put at risk by that conduct.”) (emphasis added); Keeton 

et. al., § 42, at 273 (“[T]he scope of liability should ordinarily extend to but not beyond the scope of the ‘foreseeable risks’—that is, the risks by reason of which the actor’s 

conduct is held to be negligent.”) (emphasis added).

Before the Veterans Court, Mr. Ollis suggested various theories of fault under § 1151(a)(1)(A), including that 

his VA doctors may have been negligent by recommending 
12 OLLIS v. SHULKIN

the mini-MAZE procedure to him, or by referring him to a 

particular doctor who negligently performed the miniMAZE procedure. The Veterans Court found no “evidence 

indicating that Dr. Hall was not qualified to perform the 

MAZE procedure or that VA medical personnel were 

negligent in any recommendation regarding who might be 

able to perform the MAZE procedure.” J.A. 9. Even if 

Mr. Ollis could meet the cause requirement of 

§ 1151(a)(1), the Veterans Court found Mr. Ollis’s arguments regarding VA fault for negligent referral to a 

particular doctor under § 1151(a)(1)(A) to be “speculative 

at best,” i.e., that there was no proximate cause between 

VA negligence and the injury, id., and we see no legal 

error in that analysis. The question remains, however, 

whether Mr. Ollis’s VA medical doctors were negligent 

under § 1151(a)(1)(A) by recommending the mini-MAZE 

procedure to him, and we remand for consideration of this 

question. 

B. Event Not Reasonably Foreseeable 

A theory of recovery under § 1151(a)(1)(B) in the referral context presents a more difficult interpretive question. In order to resolve this case, it is necessary to 

construe several terms of the statute insofar as they apply 

to § 1151(a)(1)(B): (1) “not reasonably foreseeable”; (2) 

“proximate cause of the disability or death”; and (3) 

“caused by.”

“[N]ot reasonably foreseeable.” Current VA regulations indicate that, for an event to qualify as an event not 

reasonably foreseeable, it must be judged not reasonably 

foreseeable at the time of the disability-causing event—in 

this case, performance of the mini-MAZE procedure—not 

at some earlier point in time such as referral or recommendation by the VA. The regulations make this clear

that an event not reasonably foreseeable “must be one 

that a reasonable health care provider would not have 

considered to be an ordinary risk of the treatment provid-
OLLIS v. SHULKIN 13

ed” and not “the type of risk that a reasonable health care 

provider would have disclosed in connection with . . . 

informed consent.” 38 C.F.R. § 3.361(d)(2). The Veterans 

Court did not address this question of whether the lack of 

foreseeability requirement was satisfied here. 

“[P]roximate cause of the disability or death.” Under 

§ 1151(a)(1)(B), the “proximate cause of the disability or 

death” language performs a limited function. The veteran 

need only show that the disability or death was proximately caused by the unforeseeable event, and a showing 

of fault is not required. One could envisage a situation in 

which an unforeseeable event is not the proximate cause 

of a disability, for example, if phrenic nerve severance 

would not foreseeably cause shortness of breath and 

decreased lung function. But there is no contention here 

that is the case. It is also equally clear that an unforeseeable event such as phrenic nerve severance can be the 

proximate cause of the disability, meaning that the proximate cause requirement of § 1151(a)(1)(B) would be 

satisfied. Again, the Veterans Court did not address this 

requirement. 

“[C]aused by.” But even if Mr. Ollis can satisfy the 

proximate cause requirement of § 1151(a)(1)(B), the cause 

requirement of § 1151(a)(1) remains. The government 

argues that the cause requirement in § 1151(a)(1) includes at least some lesser proximate causation. To the 

extent the government argues and the Veterans Court 

concluded that VA medical care must proximately cause a 

claimant’s disability, that is inconsistent with 

§ 1151(a)(1)(B) and would render it a nullity. By definition a claimant cannot show that an injury that is unforeseeable was proximately caused by VA medical care.

At the same time, we are convinced that Congress did 

not contemplate a mere but-for cause analysis under this 

requirement. From the background of the statute, it 

seems quite clear that Congress intended some concept of 
14 OLLIS v. SHULKIN

remoteness to be inherent in the cause requirement of 

§ 1151(a)(1). We explained as much in Viegas, concluding 

that “the statute does not extend to the ‘remote consequences’ of the hospital care or medical treatment provided by the VA.” 705 F.3d at 1383. As Viegas recognized, 

this cause requirement might not be satisfied “[i]f, for 

example, a veteran reported to a VA medical center for an 

examination, and hours later was injured while engaged 

in recreational activities at the facility, [since] his injury 

might well be deemed only a ‘remote consequence’ of his 

earlier examination.” Id. 

Thus, we think that cause under § 1151(a)(1) incorporates some remoteness requirement. This remoteness 

requirement is the same as the traditional proximate 

cause requirement but without fault and applicable to a 

limited sequence of events. See Gardner, 513 U.S. 119 

(“Assuming that the [causal] connection is limited to 

proximate causation so as to narrow the class of compensable cases, that narrowing occurs by eliminating remote 

consequences . . . .” (emphasis added)). It is, in other 

words, a lesser proximate cause requirement. As discussed earlier, the basis for recovery under 

§ 1151(a)(1)(B)—i.e., an event not reasonably foreseeable—indicates that the statute cannot require proximate 

causation between VA medical treatment and the disability. By definition an unforeseeable event cannot be proximately connected to medical treatment. Causation, 

however, requires that VA medical treatment proximately 

cause the treatment that caused the disability—i.e., that 

it caused the mini-MAZE procedure. Here, in other words, 

only the performance of the mini-MAZE procedure and 

not the nerve severance or the resulting shortness of 

breath and decreased lung function must be proximately 

caused by VA medical treatment to satisfy the cause 

requirement in § 1151(a)(1).

Mr. Ollis seeks to draw a chain of causation that includes the recommendation provided by a VA doctor that 
OLLIS v. SHULKIN 15

ultimately led Mr. Ollis to see Dr. Hall, the private cardiologist who actually performed the mini-MAZE procedure 

that damaged his phrenic nerve and caused his disability.3 The question remains whether VA medical care 

proximately caused the mini-MAZE procedure, a question 

not addressed by the Veterans Court.

III

Accordingly, when recovery is predicated on a referral 

theory involving an unforeseeable event under 

§ 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care

proximately cause the medical treatment or care (here, 

the mini-MAZE procedure) during which the unforeseeable event occurred (here, the severance of the phrenic 

nerve). Section 1151(a)(1)(B) further requires that the 

unforeseeable event—phrenic nerve damage—

proximately cause the 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. 

To some extent the Veterans Court appears to have 

confused the cause and proximate cause requirements of 

§ 1151(a)(1) and § 1151(a)(1)(A)–(B). See J.A. 8 n.8 (“Viegas . . . addresses causation and . . . is consistent with the 

general interpretation of ‘proximate cause’ . . . .”). Specifically, the Veterans Court made two legal errors in this 

aspect of its analysis. First, it framed the question as 

whether Mr. Ollis’s disability was a remote consequence 

of VA medical treatment, whereas the correct inquiry 

under § 1151(a)(1)(B) is whether the medical procedure

was a remote consequence of VA medical treatment—i.e., 

whether VA medical treatment proximately caused 

 

3 As noted earlier, this is not a case where a private 

doctor acted as an agent of the VA.
16 OLLIS v. SHULKIN

Mr. Ollis to undergo the mini-MAZE procedure. See J.A. 

7–8 (“Mr. Ollis’s disability was, at best, a remote consequence of—and not caused by—VA’s conduct.”) (emphasis 

added); id. at 8 (“[T]he conduct of VA’s Dr. Rottman . . . is 

simply too remote from Mr. Ollis’s disability to be considered its cause.”) (emphasis added). Second, the Veterans 

Court focused on the question whether VA medical treatment caused Mr. Ollis to utilize Dr. Hall and Methodist 

Medical Center, rather than on whether VA medical 

treatment caused him to have the mini-MAZE procedure 

itself. The Veterans Court’s decision did not analyze this 

case under that framework, and a remand is required. On 

remand, the Veterans Court must also address the not 

reasonably foreseeable and proximate cause of the disability or death requirements.

IV 

Lastly, Mr. Ollis argues that VA’s failure to provide 

him notice that a referral to a private facility for his miniMAZE procedure could extinguish his eligibility for benefits under § 1151(a) constitutes a violation of his right to

due process. Specifically, Mr. Ollis relies on Cushman v. 

Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), to argue that he 

has a protected property interest in his right to coverage

under that provision should he meet the requirements, 

and the lack of notice violated the basic requirements of 

due process—notice and a fair opportunity to be heard.4

 

4 Before the Veterans Court, Mr. Ollis also relied on 

the language of 38 U.S.C. § 6303(c)(1)(A) that the VA 

“shall distribute full information to eligible veterans . . . 

regarding all benefits and services to which they may be 

entitled” to support his due process claim. But we have 

previously held this language to be only hortatory (see 

Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 

2003)), and Mr. Ollis does not raise this statutory argument on appeal. 
OLLIS v. SHULKIN 17

The Veterans Court held that there was no due process 

violation. 

In Cushman we held that entitlement to veterans’ 

disability benefits is a protected property interest since 

such benefits are nondiscretionary and mandated by 

statute. Id. at 1298. There, VA’s reliance on an improperly 

altered medical record in adjudicating the veteran’s claim 

for monetary benefits constituted a due process violation. 

Id. at 1300. As such, Cushman addressed the adequacy of 

the adjudication procedure. There is no due process right 

to notice regarding conditions that might in the future

affect an individual veteran’s right to monetary benefits

(a right that is governed by statute and regulation) before 

the veteran incurs an injury or applies for such benefits.5

See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 

576 (1972) (“The Fourteenth Amendment’s procedural 

protection of property is a safeguard of the security of 

interests that a person has already acquired in specific 

benefits.”); see also Devlin v. Office of Pers. Mgmt., 767 

F.3d 1285, 1288 (Fed. Cir. 2014) (holding that an application is necessary for Basic Employee Death Benefits 

before there is a protected property interest). Accordingly, 

we affirm the Veterans Court’s decision on Mr. Ollis’s due 

process claim.

CONCLUSION

We affirm in part and vacate in part the decision by 

the Veterans Court and remand for consideration in light 

of this opinion. 

 

5 The immigration cases that Mr. Ollis relies on are 

inapposite since none involves notice regarding entitlement to monetary benefits. See United States v. LopezVelasquez, 629 F.3d 894 (9th Cir. 2010); United States v. 

Copeland, 376 F.3d 61 (2d Cir. 2004); United States v. 

Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004). 
18 OLLIS v. SHULKIN

AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED

COSTS

Costs to appellant.