Citation Nr: 18143835 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 18-35 061 DATE: October 22, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness is granted. FINDING OF FACT The Veteran suffered an additional disability from eye surgery performed by a VA medical professional and the proximate cause of the disability was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right eye blindness have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from November 1961 to November 1963. Entitlement to compensation under 38 U.S.C. § 1151 for blindness The Veteran appeals the denial of compensation under 38 U.S.C. § 1151 for right eye blindness due to surgery performed at a VA facility. The law provides that compensation may be paid for a qualifying additional disability not the result of the Veteran’s willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. The regulations provide that benefits under 38 U.S.C. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, or examination, require actual causation, not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. See 38 C.F.R. § 3.361(c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s, informed consent. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a Veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). The record shows that in June 2015 the Veteran underwent a phacoemulsification of cataract of the right eye. It was noted that the Veteran tolerated the procedure well and that it was without complication. A postoperative diagnosis was given of nuclear senile cataract of the right eye. The record shows, however, that post operation the Veteran reported a worsening of his right eye to include blurriness near and distant. During the April 2018 VA examination, the examiner noted the Veteran’s history of right eye retinal detachment about one to two years prior. It was noted that the Veteran had an early detachment in 2014 and it was fixed in 2015. It was also noted that there was a worsening of vision after the surgery for repair of the right eye retina. Examination revealed a loss of vision, stye on bottom lid of the right eye. The VA examiner found that the Veteran’s claimed disability of blindness of the right eye became worse as result of the VA treatment at issue. He reasoned that the Veteran’s visual acuity after surgery was worse than it was prior to surgery. Although he found that the additional disability did not appear to be due to negligence, lack of skill or similar of VA, he found that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. He stated that the scar tissue in the retina makes retinal repair surgery very difficult and that there is a retinal membrane present that sometimes occurs after surgery and cannot be anticipated in advance. The statute and regulation reflect that, if additional disability due to VA treatment is either caused by VA fault or the result of an event not reasonably foreseeable, entitlement to compensation under 38 U.S.C. § 1151 is warranted. The meaning of the term “not reasonably foreseeable” is ambiguous and subject to multiple interpretations which is not otherwise clarified by legislative intent. See Schertz v. Shinseki, 26 Vet. App. 362, 367-8 (2013). The Court interpreted this phrase as encompassing VA compensation for events which are not reasonably foreseeable by a reasonable health care provider. The opinion by the VA examiner indicates that right eye blindness as suffered by the Veteran would not be foreseeable to a reasonable health care provider. As such, based upon the VA examiner’s findings that the Veteran’s right eye blindness was not foreseeable, the Board must find in favor of the claim. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In sum, the Board concludes that the Veteran suffered an additional disability from eye surgery performed by VA medical professional and that the proximate cause of the disability was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Accordingly, the claim is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie