2016 Problem Summary

Robert A. McDonald,
Secretary of Veterans Affairs, Petitioner,

v.

Peter M. Mitchell, Respondent.

Veteran Peter Mitchell served in the U.S. Navy from April 1982 to August 1991. He was discharged after being diagnosed with epilepsy. VA awarded service connection for epilepsy and assigned a 20% disability rating as of the date of his separation from service.

In November 2009, after Mr. Mitchell developed an allergy to traditional antiepileptic medication, his treating physician began administering weekly injections of cannabidiol (“CBD”), a medical marijuana derivative. Thereafter, in January 2010, Mr. Mitchell submitted a request to VA for pre-authorization for reimbursement of the cost of his CBD injections. VA denied his request, and he timely appealed.

Separately, on July 17, 2010, Mr. Mitchell was admitted to the emergency room at the VA San Diego Healthcare System after experiencing several severe seizures. Mr. Mitchell asked to be treated with CBD, but the VA physician informed him that, as marijuana was illegal under federal law, she could not do so. Rather, in light of Mr. Mitchell’s allergy to conventional antiepileptic medication, the physician decided that the best course of action was to let his attack run its course. Mr. Mitchell suffered two additional seizures in the ER; during one, he fell and hit his head, sustaining a mild concussion. Mr. Mitchell continues to suffer from occasional dizziness, confusion, and irritability as a result.

In September 2010, Mr. Mitchell filed a claim for compensation under 38 U.S.C. § 1151 for the residuals of his concussion. The San Diego, California, VA regional office denied his claim, and he timely appealed.

On April 20, 2014, the Board of Veterans’ Appeals (“Board”) issued a decision denying both of Mr. Mitchell’s claims. With respect to the issue of pre-authorization for reimbursement of his CBD injections, the Board determined that VA was prohibited by the Controlled Substance Act from reimbursing veterans for marijuana treatments. Similarly, with respect to the issue of compensation under section 1151, the Board found that that there was no “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” in VA’s failure to administer CBD.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), Mr. Mitchell argued that the Board erred in denying both of his claims, as it failed to consider the fact that medical marijuana is legal under California law and that he would not have suffered his concussion if had been treated with CBD. The Secretary responded that the Board was bound by marijuana’s status as a Schedule I drug under the Controlled Substances Act. The CAVC affirmed the Board’s decision on both claims. With respect to the reimbursement issue, the CAVC held that it could not reach the validity of the laws and regulations listing marijuana as a Schedule I drug and, thus, that it could not hold that the Board erred. Similarly, the CAVC held that, as a matter of law, the failure to administer an illegal drug could not constitute a breach of the standard of care for the purposes of section 1151. One judge dissented in part, arguing that the determination as to whether VA breached the standard of care should be a factual determination, rather than a legal one, requiring the weighing of evidence.

Mr. Mitchell appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”). The Federal Circuit reversed the CAVC decision, holding both that the CAVC was not precluded from reviewing the laws and regulations listing marijuana as a Schedule I drug and that the CAVC erred in holding that, as a matter of law, the failure to administer an illegal drug could not constitute a breach of VA’s standard of care for the purposes of section 1151. One judge dissented in part, writing that he would affirm the CAVC’s affirmance of the 1151 issue, as, under the undisputed facts of the case, VA’s actions did not breach the standard of care under section 1151.

The Secretary filed a petition for a writ of certiorari to the U.S. Supreme Court, which granted certiorari on the following two questions:

  1. Does the U.S. Court of Appeals for Veterans Claims have the authority to review the validity of laws and regulations outside of Title 38 of the United States Code and Code of Federal Regulations, specifically the laws and regulations listing marijuana as a Schedule I drug for the purposes of the Controlled Substances Act?
  2. Can the failure to administer medical marijuana constitute “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” for the purposes of 38 U.S.C. § 1151?