Citation Nr: 18100987 Decision Date: 04/25/18 Archive Date: 04/25/18 DOCKET NO. 14-40 948 DATE: April 25, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 2 REMANDED ISSUES The issues of entitlement to service connection for a right shoulder disability and entitlement to compensation under 38 U.S.C. § 1151 for residuals of right eye surgery are remanded for additional development. The Veteran had active service from August 1966 to September 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The evidence indicates there may be outstanding relevant VA treatment records. The claims file contains a gap in treatment records from January 27, 2011 to January 31, 2013. The Veteran asserts that he received VA treatment during this period, to include being referred by his VA physician to a non-VA facility for an October 2011 eye surgery. Additionally, the November 2014 Statement of the Case indicates that the VA treatment records dated through November 20, 2014 had been considered. To date, VA treatment records subsequent to January 2014 have not been associated with the claims file. Accordingly, on remand the aforementioned records should be obtained. The Veteran was provided a VA shoulder examination in December 2011. The Board finds that an additional examination and opinion is warranted. With respect to the Veteran’s claim for compensation under 38 U.S.C. § 1151, the Veteran asserts that he suffered a loss of right eye vision following an eye surgery performed at a non-VA facility to which he had been referred for treatment by his VA physician. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently addressed the matter of how to construe the statutory requirements of § 1151 when the disability-causing event occurred during a medical procedure that was not performed by a VA doctor or in a VA facility, specifically, how to apply § 1151 to referral situations. Ollis v. Shulkin, 857 F. 3d 1338 (Fed. Cir. 2017). 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. Section 1151(a)(1)(B) further requires that the unforeseeable event proximately cause the disability. Treatment records from Dean McGee Eye Institute confirm that the Veteran underwent a right eye trabeculectomy and express shunting in October 2011. While VA treatment records indicate that the Veteran has loss of vision in his right eye and has been referred by his VA medical provider for treatment at Dean McGee Eye Institute, it is unclear whether VA’s medical treatment, specifically the advice provided by the Veteran’s VA physician, was the proximate cause of the Veteran undergoing the October 2011 eye surgery and whether an unforeseeable event during the October 2011 surgery caused the Veteran’s loss of right eye vision. Ollis, 857 F. 3d at 1346. While the Veteran submitted excerpts of treatment records from Dean McGee Eye Institute, complete treatment records, including records pertaining to the October 2011 surgery, have not been obtained. On remand, reasonable efforts should be made to obtain all private treatment records from Dean McGee Eye Institute. Additionally, if the evidence indicates that the Veteran’s VA medical provider recommended that he have the October 2011 surgery, a medical opinion should be obtained to address whether that surgery resulted in additional disability that was not reasonably foreseeable. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, to include Dean McGee Eye Institute. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain all outstanding VA treatment records dated between January 27, 2011 and January 31, 2013 and all VA treatment records dated since January 9, 2014. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above is completed to the extent possible, schedule the Veteran for a shoulder examination to address the right shoulder claim. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any current right shoulder disability arose in, is a maturation of, or is otherwise related to service, specifically the Veteran’s October 3, 1967 right shoulder injury. Please explain why or why not, to include explaining why the current right should disability is/is not a posttraumatic residual of that injury. 3. If the evidence indicates that the Veteran’s VA medical provider recommended that he undergo the October 2011 surgery, obtain a medical opinion addressing the following: (a.) Does the Veteran have an additional disability after the October 2011 surgery that he did not have prior to such treatment? If so, please identify the additional disability. (b.) For any additional disability, is it at least as likely as not (a 50 percent or higher degree of probability) that such additional disability was the result of the October 2011 surgery? (c.) If so, was the additional disability sustained during the October 2011 surgery due to an event not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed in informed consent procedures), or was it an ordinary known risk of the surgery performed? All findings and conclusions should be supported with complete rationale. 4. After completing the above actions and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period should be allowed for response before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson, Counsel