Joe Whitcomb
claim for dependency and indemnity compensation benefits
Pat A. Hatfield is seeking to reopen a claim for dependency and indemnity compensation benefits, alleging that the Department of Veterans Affairs failed to obtain her husband's consent before providing cancer treatment. The appellant argues that the Board of Veterans' Appeals made a clear and unmistakable error (CUE) in a previous decision by misapplying an implementing regulation. However, the Court of Appeals for Veterans Claims ruled that they did not have jurisdiction to address the appellant's theory and that the Board's prior decision did not contain CUE. The court also ruled that the implementing regulation in effect at the time did not allow for compensation based on the failure to obtain consent.
The appellant is challenging a 1980 decision made by the Board of Veterans' Appeals that denied her entitlement to compensation under section 351. She argues that the Board's decision contained CUE because it did not address whether the Department of Veterans Affairs' failure to obtain her husband's consent before radiation treatment constituted deficient medical care. However, the Court of Appeals for Veterans Claims holds that in 1980, a failure to obtain a patient's informed consent was not undebatably a basis for awarding compensation under section 351. As a result, the Court affirms the Board's decision, stating that the appellant has not demonstrated that the only reasonable interpretation of section 351 in 1980 warranted benefits based on a failure to obtain a patient's informed consent.
CUE-Clear and unmistakable error
In September 2020, the appellant filed a motion alleging clear and unmistakable error (CUE) in the 1980 Board decision. The basis of the motion was that the decision failed to address whether the Department of Veterans Affairs had obtained informed consent from the appellant's husband before his radiation treatment. However, the Board denied the CUE motion, arguing that in 1980, the law did not require consideration of informed consent in compensation claims under section 351.
The appellant argued that the Board's failure to address the lack of informed consent constituted CUE, as the law at the time equated the absence of informed consent with negligence, which could have warranted compensation under section 351. On the other hand, the Secretary contended that the law in 1980 did not recognize a failure to obtain informed consent as a basis for compensation.
The Court thoroughly examined the relevant legal framework governing CUE and section 351/1151 compensation and provided an overview of the Board's handling of the appellant's CUE motion. Ultimately, the Court concluded that the Board's decision did not contain clear and unmistakable error and upheld the decision on appeal.
To determine the jurisdiction it had over the CUE allegations, the Court agreed that the failure of the 1980 Board decision to address informed consent was an appropriate matter for consideration. The Court delved into the evolution of section 351, which underwent amendments in response to a Supreme Court ruling introducing a fault requirement.
The appellant's arguments regarding 38 C.F.R. § 3.358 and the common law were addressed by the Court, which concluded that it did not have jurisdiction to entertain a CUE theory based on § 3.358. Ultimately, the Court reiterated its finding that the Board's decision did not contain clear and unmistakable error and affirmed the decision on appeal.
Examining the meaning of section 351 in 1980, the Court noted that it did not explicitly mention informed consent. To better understand the role of informed consent in the section 351 compensation scheme in 1980, the Court turned to the legislative history of the statute. Based on its analysis, the Court concluded that the Board had not erred in its 1980 decision, as there was no clear and unmistakable error.
section 351, compensation to those harmed by VA medical treatment
The Court also delved into the rich history of section 351, which serves as a means of compensating individuals who have been harmed by VA medical treatment. Notably, this statute remained largely unchanged from 1958 to the mid-1960s, with only minor modifications in 1976 to remove any gendered language.
Furthermore, the Court explored the significance of section 4131, which mandates that VA medical professionals obtain informed consent from patients before providing treatment. However, the Court determined that there was no evidence to suggest that the principles of informed consent were a focal point of discussion when Congress was considering section 351. The Court also noted that the connection between the requirement of informed consent and the provision of disability-like compensation under section 351 was not apparent. In fact, the Court highlighted that the regulation adopted by the VA regarding informed consent did not make any specific mention of section 351 or the type of compensation associated with it. Additionally, the Court dismissed the argument that the early legislative history of section 351 referred to common law concepts, as the common law did not recognize a lack of informed consent as negligence during that particular time period.
Moreover, the Court rejected the appellant's contention that any changes in the law after 1980 should not be considered when assessing whether there was clear and unmistakable error (CUE) in the 1980 Board decision. Instead, the Court argued that the post-1980 regulatory changes provided valuable context for understanding how section 351 was interpreted at the time of the 1980 Board decision. The Court ultimately found that the appellant's allegations of CUE failed to establish that the only reasonable interpretation of section 351 in 1980 included a failure to obtain informed consent as a basis for compensation. In support of this conclusion, the Court discussed the regulatory history of section 351, highlighting that the regulation in effect in 1980 did not make any mention of informed consent, whereas the current regulation explicitly recognizes informed consent as a relevant factor to consider.
informed consent to be considered
The Court examines the historical background of section 351, emphasizing that the regulation in effect in 1980 did not address informed consent, whereas the current regulation explicitly acknowledges its significance. The Court argues that the changes in language and regulatory history highlight the clear disparities in the regulations. The Court further discusses the Supreme Court's 1994 decision in Gardner II, which invalidated a version of § 3.358 that required fault for establishing compensation eligibility under section 1151.
Additionally, the Court observes that the notion of consent first emerged in the history of the section 1151 compensation provisions in 1995, following the Gardner II ruling. The Court explores how Congress amended section 1151 to include a fault requirement and how the VA proposed changes to the implementing regulation to align with the amended version of section 1151. Affirming the Board's decision, the Court determines that the October 1980 Board decision did not contain clear and unmistakable error (CUE).
The Court dismisses the appeal regarding CUE allegations related to noncompliance with the common law or the misapplication of 38 C.F.R. § 3.358. It argues that the regulatory history reveals that a failure to obtain a patient's informed consent only became grounds for compensation under section 1151 in the 1990s, long after the 1980 Board decision. Consequently, the Court concludes that the Board appropriately considered this regulatory history in its analysis. Moreover, the Court finds that the appellant fails to present any evidence indicating that a failure to obtain informed consent supported an award of compensation under section 351 in October 1980. The case refers to a previous court decision involving Mrs. Hatfield, Hatfield v. McDonough (Hatfield I), which contains information about the veteran's DD Form 214.
Citing 38 U.S.C. §§ 7252(a) and 7266(a), the Court discusses its jurisdiction over the case. It cites two cases, Berger v. Brown and Perciavalle v. McDonough, which discuss the criteria for a CUE motion. The Court makes references to several pages in the record of proceedings that contain crucial information, such as the veteran's medical records and the Board's decision. Furthermore, the Court delves into the procedural history of Mrs. Hatfield's pursuit of DIC benefits, as detailed in Hatfield I.
The Court also mentions the McNair v. Shinseki case, which is discussed in Hatfield I and provides guidance on the interpretation of 38 C.F.R. § 3.358. It cites various sections of the United States Code (38 U.S.C. §§ 351, 1151, 7111) and the Code of Federal Regulations (38 C.F.R. § 20.1403). Several cases (DiCarlo v. Nicholson, DiCarlo v. Peake, George v. McDonough, Simmons v. Wilkie, Damrel v. Brown, Russell v. Principi, Archer v. Principi) are referenced to provide insights into the interpretation of the aforementioned statutes and regulations. The Court discusses exceptions to finality, such as the Chairman of the Board granting reconsideration of a Board decision or a claimant reopening a previously denied claim.
Furthermore, the Court highlights the requirement for specificity when identifying the particular provision in the regulations upon which the veteran relies. The case mentions the oral argument held on December 13, 2022, in Hatfield v. McDonough. The Court examines the appellant's argument that her claim is not based on retroactive application of the law, but rather on the fact that the law at the time of the October 1980 Board decision allowed compensation for a failure to obtain a patient's informed consent. It refers to cases (McGee v. Peake, Williams v. Taylor, Transamerica Mortg. Advisors, Inc. v. Lewis) that provide guidance on the interpretation of congressional intent. Finally, the Court includes the copyright information for the case.
Veterans’ Administration Benefits Consolidation Act of 1958
The court draws upon various cases (DiGiovanni v. Traylor Bros., Inc., Allison v. Liberty Sav., Gardner v. Brown) that offer valuable insights into interpreting congressional intent. It extensively discusses the Veterans’ Administration Benefits Consolidation Act of 1958 and the United States Veterans’ Bureau, while also referring to the legislative history of this act. The court examines the changes made to the Veterans’ Administration Benefits Consolidation Act of 1958 in 1962 and 1969, and acknowledges the addition of a provision in 1976. Additionally, the court addresses the appellant's argument that the Department of Veterans Affairs violated the informed consent requirement, citing an article related to informed consent. It also explores the court's jurisdictional limitations in considering the appellant's claim of clear and unmistakable error (CUE) in the October 1980 Board decision, which allegedly involved a misapplication of § 3.358 or a failure to apply the regulation at all. To evaluate the Board's reasoning in rejecting the CUE theory, the court refers to the regulatory history of § 3.358.
Furthermore, the court delves into the appellant's contention that the Department of Veterans Affairs violated the informed consent requirement. It cites Code of Federal Regulations (C.F.R.) § 3.358(c)(3) (1996), which states that compensation is not granted for the necessary consequences of properly administered medical or surgical treatment or examination with the explicit or implied consent of the veteran. The court also makes reference to the Federal Register (Fed. Reg.), which discusses changes made to the Veterans’ Administration Benefits Consolidation Act of 1958 in 1996. Lastly, the court mentions the case of Hatfield v. McDonough as a point of reference.