Citation Nr: 20037247 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 19-35 868A DATE: June 1, 2020 REMANDED Entitlement to compensation under 38 U.S.C.§ 1151 for right eye blindness is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that denied the Veteran’s claim of entitlement to compensation under 38 U.S.C.§ 1151 for right eye blindness. Under certain circumstances, VA provides benefits for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See generally 38 U.S.C. § 1151. For a claimant to qualify for such benefits, the additional disability must not be the result of the claimant’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). Additionally, the proximate cause of the additional disability must be either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1). Initially, the Board notes that it appears the four procedures that form the basis of the Veteran’s claim were furnished under a contract made under 38 U.S.C. § 1703, relating to the Veterans Community Care Program; therefore, the procedures cannot constitute “hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility” for the purpose of an 1151 claim despite the source of payment for such care. See 38 C.F.R. § 3.361(f). Nevertheless, this does not prohibit the Veteran from establishing entitlement to the benefit sought on the basis of a “referral theory,” but this type of theory significantly changes the focus of the analysis of the Veteran’s claim when compared with the opinions that have been previously obtained in the context of this appeal. See Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis v. Shulkin, the Federal Circuit examined the applicability of section 1151 to referral situations. The Federal Circuit first acknowledged a referral theory could be based on negligence under 38 U.S.C. § 1151(a)(1)(A), e.g., VA was negligent in recommending a certain procedure, but it also noted the possibility that benefits could be granted under a referral theory pursuant to 38 U.S.C. § 1151(a)(1)(B) without any fault on VA’s part when any additional disability results from an unforeseeable event. The Federal Circuit noted the proximate cause requirement for a negligence theory under 38 U.S.C. § 1151(a)(1)(A) incorporates traditional tort law notions of proximate cause (“[a] cause that is legally sufficient to result in liability”), but it explained the causation chain for claims based on an unforeseeable event 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. Here, VA has obtained two opinions regarding the Veteran’s claim, both of which discuss aspects of whether the four procedures performed by D.M., M.D, and Y.W., M.D., from March 2016 through May 2016 meet the applicable standard of care, which is not relevant since the procedures, as previously noted, cannot constitute “hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility.” See 38 C.F.R. § 3.361(f). The author of the April 2017 opinion, D.S., M.D., noted he did not believe the Veteran’s disability could have been foreseen at the time of treatment, but he did not discuss whether the Veteran’s disability resulted from an unforeseeable event or provide a rationale to support his conclusion. Thus, the Board finds a new opinion is necessary to make an informed decision on the Veteran’s claim. The matter is REMANDED for the following action: Obtain a new opinion regarding the Veteran’s claim addressing the following questions: a) Did VA exercise the degree of care that would be expected of a reasonable health care provider in recommending the Veteran undergo the initial right eye cataracts procedure that was performed by D.M., M.D., on March 9, 2016, and, if not, was this breach of the standard of care at least as likely as not (50 percent probability or greater) the proximate cause of the Veteran’s right eye blindness? It must be noted VA regulation stipulates proximate cause in the context of an 1151 claim is the action or event that directly caused the disability, as distinguished from a remote contributing cause. b) Did an event not reasonably foreseeable at the time of the March 9, 2016 right eye cataracts procedure, or any of the three related follow-up procedures thereafter, at least as likely as not (50 percent probability or greater) proximately cause the Veteran’s right eye blindness? It must again be noted VA regulation stipulates proximate cause in the context of an 1151 claim is the action or event that directly caused the disability, as distinguished from a remote contributing cause. For the purpose of this question, it must also be noted, for an event to qualify as an event not reasonably foreseeable, it must be judged not reasonably foreseeable at the time of the disability-causing event not at some earlier point in time such as referral or recommendation by the VA. Further, an event not reasonably foreseeable must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided and not the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. The selected expert must provide a full rationale to support each conclusion reached for the opinion to be deemed adequate. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.