Citation Nr: 18152749 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 18-04 691 DATE: November 26, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for loss of use of the right eye is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1958 to April 1961 and from May 1962 to October 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Entitlement to compensation under 38 U.S.C. § 1151 for loss of use of the right eye is remanded. Following an eye consult in November 2015, an ophthalmologist at a VA Clinic in El Paso, Texas discussed cataract surgery with the Veteran. It was noted that the Veteran wanted to have the surgery and that he would be referred to the Veterans Choice Program. Eligibility for the program was verified later that same month. In January 2016, the surgery was performed by a non-VA, fee-based physician, Dr. M. C. Thereafter, the Veteran was noted to have post-operative retinal detachment in the right eye, for which he underwent additional (VA) surgery in March 2016. As a threshold matter, a claim for compensation under 38 U.S.C. § 1151 must be based on hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A). 38 U.S.C. § 1151(a)(1). The implementing regulation, 38 C.F.R. § 3.361(f), provides that the following are not hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151(a): (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703 (authorizing VA to contract with non-VA facilities for hospital care or medical services under certain circumstances when VA is not capable of furnishing the care or services required); (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction. In Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the application of § 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA employee or in a VA facility. The Federal Circuit determined that benefits could be granted on a negligence theory under 38 U.S.C. § 1151(a)(1)(A) if VA care providers were negligent in recommending the procedure to the Veteran. The Federal Circuit further determined that benefits could be granted under a referral theory pursuant to § 1151(a)(1)(B) as an event not reasonably foreseeable. As to the latter of these two paths of recovery, the Federal Circuit held that 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 during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) requires that the unforeseeable event proximately cause the additional 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.” Ollis, 857 F.3d at 1346. In this case, under the holding in Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran’s cataract surgery in January 2016 (i.e., that a VA practitioner recommended that the Veteran have the surgery), (2) an “unforeseeable event” occurred, and (3) the unforeseeable event proximately caused the Veteran’s additional disability of retinal detachment. In October 2018, the Veteran’s representative advanced argument to the effect that the referring VA doctor’s quality assurance records should be obtained for review. The representative also asserted, in effect, that the documentation related to informed consent should be obtained from the outside medical facility, as should records relating to the outside medical facility’s quality assurance and any legal actions brought against them. The Board notes that an unfavorable VA medical opinion was obtained in this matter in August 2016. The opinion was rendered without benefit of the additional evidence the Veteran’s representative presently seeks to obtain, to particularly include the Veteran’s informed consent from the outside medical facility. Moreover, the opinion was proffered prior to, and therefore without consideration of, the Federal Circuit’s holding in Ollis – that benefits associated with medical services performed by a non-VA provider at a non-VA facility may nevertheless be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. As such, another medical opinion should be procured. This matter is REMANDED for the following action: 1. After obtaining an appropriate release from the Veteran, make efforts to obtain and associate with the claims file any outstanding private treatment records related to his January 2016 cataract surgery, to include documentation related to the Veteran’s informed consent for the procedure and the evidence the Veteran’s representative is seeking with respect to the outside medical facility’s quality assurance. All attempts to secure this evidence must be documented in the claims file. If any of the records sought are not available or cannot be obtained, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Make reasonable efforts to obtain any VA quality assurance records that may be relevant to the Veteran’s appeal. If the Veterans Health Administration denies access to the records on the basis that they are protected under 38 U.S.C. § 5705, appeal the denial to VA’s Office of General Counsel (OGC) pursuant to 38 C.F.R. § 17.506 and VAOPGCPREC 1-2011 (Apr. 2011). If OGC concludes that the records are protected by 38 U.S.C. § 5705 and implementing regulations, associate OGC’s findings in that regard with the record. If OGC concludes that the records are not protected, associate the records with the claims file. 3. After the foregoing development has been completed to the extent possible, arrange to have a physician with appropriate experience review the record and offer an opinion as to each of the following questions: a. Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s detached retina and associated loss of use of his right eye was proximately caused by the January 2016 cataract surgery? b. If the answer to (a) is affirmative, was the additional disability due to an event not reasonably foreseeable? That is to say, was the event that proximately caused the additional disability one that a reasonable health care provider would not find to be an ordinary risk of cataract surgery? c. Does it appear from the available information that VA recommended that the Veteran undergo cataract surgery? d. Were the Veteran’s VA care providers negligent in recommending cataract surgery to the Veteran? A complete rationale for all opinions expressed must be provided. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. R. Watkins, Counsel