Citation Nr: 1317705 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 11-21 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for loss of bowel and sphincter control, loss of bladder control, and erectile dysfunction, due to November 18, 2008 back surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for loss of bowel and sphincter control, loss of bladder control, and erectile dysfunction, due to November 18, 2008 back surgery. In May 2012, the Veteran testified before the Board at a travel board hearing. A transcript of this hearing has been associated with the claims file. The Board remanded this claim in July 2012 for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including VA medical records dated from July 2010 to November 2012, are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, after a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. The Board notes that VA's medical quality-assurance program consists of systemic health care reviews carried out by or for VA for the purpose of improving the quality of medical care or improving the utilization of health care resources in VA medical facilities. Such data may relate to the structure, process, or outcome of health care provided by VA. 38 U.S.C.A. § 17.500(c). Under 38 U.S.C.A. § 5705, records created as part of the medical quality-assurance program are confidential and access is limited. Stated another way, VA quality-assurance records are not the outpatient or inpatient records generated to document the treatment provided to the Veteran. Instead, these records are produced by VA, often in the form of peer review, to study outcomes at VA and determine if administrative action is needed to improve VA health care in the future. The records are confidential to protect the identities of peer reviewers and promote frank discussion. Hence, there is now a procedure in place as outlined by the General Counsel in VAOPGCPREC 1-2011 to determine whether such records, if they exist, may be obtained and reviewed in a veteran's claim. In VAOPGCPREC 1-2011, the VA General Counsel held that VA's duty to assist requires agencies of original jurisdiction and the Board to request access to any quality-assurance records relevant to a claim. If the appropriate VHA officials deny the request, then the General Counsel may be asked to make the determination. If both VHA and VA General Counsel conclude the records are confidential and privileged, then neither the agency of original jurisdiction nor the Board may review the documents. Pursuant to the Board's July 2012 remand, in August 2012, the AMC made a request to the Winston-Salem RO of any records from a quality-assurance review or focused review that was conducted by the Durham VA Medical Center (MC) in regards to the Veteran's November 2008 lumbar surgery and post surgical care/treatment. The RO reviewed the Veteran's temporary folder and responded that there were no records from the Durham VAMC or any other VAMC. In a January 2013 deferred rating decision, the rating officer indicated that the August 2012 request to the RO of the quality-assurance review documents had been inadequate because the RO had simply reviewed the Veteran's temporary folder at the RO. Instead, the rating officer found that the records should have been appropriately requested from the Durham VAMC, as it had been the location of the surgery in question. In January 2013, the AMC filled out a form to the Durham VAMC. Although the AMC stated on the heading of the form that this was a "Release of Information, Quality Assurance Review/Focus Review," the AMC requested that the VAMC provide "all related records pertaining to the veteran's November 2008 Lumbar surgery, to include sign consent forms and post surgical procedures." In response, the VAMC provided the VA medical records pertaining to the Veteran's November 2008 back surgery that were already of record in his claims file. The Court has held that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, although the AMC requested the Veteran's documents from the appropriate entity (i.e., Durham VAMC), it did not specify that the request was for any records of "quality-assurance review" or "focused review" conducted by the Durham VA Medical Center or other VA entity as to the surgery and complications arising from the Veteran's November 2008 lumbar surgery and post surgical care/treatment. Additionally, the request also did not indicate that in accordance with VAOPGCPREC 1-2011, if access to such records is denied, the basis for the denial must be provided. Instead, the AMC's request appeared to be for the medical records relating to the Veteran's November 2008 surgery, which have already been associated in the claims file. Given the above, another remand is necessary to determine whether quality-assurance records, if they exist in conjunction with the Veteran's November 18, 2008 back surgery, may be obtained and reviewed in the Veteran's claim. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his loss of bowel and sphincter control, loss of bladder control, and erectile dysfunction. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO/AMC should request access to records of "quality-assurance review" or "focused review" as defined in 38 U.S.C.A. § 17 .500(c) conducted by the Durham VA Medical Center or other VA entity as to the surgery and complications arising from the Veteran's November 2008 lumbar surgery and post surgical care/treatment. The letter requesting access to focused review should advise the appropriate official that in accordance with VAOPGCPREC 1-2011, if access is denied, the basis for the denial must be provided and the official must state whether the documents fall into one of the following three categories: * Protected from disclosure by 38 U.S.C.A. § 5705; * Described and designated in advance of the activity at the facility level as protected in the facility quality assurance plan or other policy document in accordance with 38 C.F.R. § 17.501(b); or, * The requested records or documents no longer exist or cannot be found. Any response must be in writing and documented in the claims files. If no records do not exist or further efforts to obtain the records would be futile, the RO or the AMC should notify the Veteran in accordance with 38 C.F.R. § 3.159(e). If the appropriate VHA official confirms that such records exist, but are privileged under the Quality Assurance Act, then the RO or the AMC should forward the request to the Office of the General Counsel. If the appropriate VHA official and the General Counsel agree that the documents are privileged, this should be documented in the claims files. If the VHA official and the General Counsel conclude that the records are not protected and access is granted, the RO or the AMC should request the focused review records and associate any copies with the claims files. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).