Citation Nr: 1319855 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-42 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for rectal fissure. 2. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral leg condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Through October 2008 and later correspondence, the Veteran has raised the additional issue of compensation under 38 U.S.C.A. § 1151 for residuals of upper spinal surgery at a VA medical facility in August 2008, and again in October 2008. Thus far, this claim has not been adjudicated under section 1151 (the statute pertaining to claims arising out of alleged negligent or otherwise deficient VA treatment). Whereas a September 2009 RO rating decision adjudicated and denied claims for service connection for difficulty swallowing, burning and numbness of the thighs, and vocal cord damage -- all conditions identified as residuals of the upper spinal surgery -- on the basis of direct incurrence or aggravation in service, the RO did not further consider possible medical negligence under section 1151. Consequently, the newly raised section 1151 claim has not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). The Board refers this matter to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Through its May 2013 Written Brief Presentation, the Veteran's representative argued that medical quality-assurance records are relevant to the instant claim on appeal for compensation under 38 U.S.C.A § 1151, and further, that these records should be obtained. In VAOPGCPREC 1-2011 (Apr. 19, 2011), VA's Office of General Counsel held that VA's duty to assist in claim development under 38 U.S.C. § 5103A requires Agencies of Original Jurisdiction and the Board to request from the Veterans' Health Administration (VHA) 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 the General Counsel conclude the records are confidential and privileged, then neither the Agency of Original Jurisdiction nor the Board may review the documents. In view of the above, the Board finds that remand is necessary to determine whether quality-assurance records, if they exist, may be obtained and reviewed in this Veteran's claim. Regarding the remaining claim on appeal, the petition to reopen service connection for a bilateral leg condition, the Board observes that through his February 2009 correspondence the Veteran articulated that he developed neurological problems with his legs and thighs following his two cervical spine surgeries in 2008. While the Veteran is not presently service-connected for any cervical spine disability, as mentioned above, he has filed a claim for entitlement to section 1151 compensation for the residuals of the cervical spine surgery. This is an unadjudicated claim which the Board has referred to the RO for its initial consideration. Were it ultimately granted, potentially the Veteran could establish service connection for a bilateral leg condition as secondary to a section 1151 recompensed cervical spine disorder. See 38 C.F.R. § 3.310 (permitting service connection for a disability claimed as proximately due to or the result of an already service-connected disability). Given this theory of recovery, the Board finds that the Veteran's petition to reopen service connection for a bilateral leg condition is "inextricably intertwined" with the referred section 1151 claim, and the disposition of the former claim must therefore be deferred pending resolving the section 1151 matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). See also Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, the case is REMANDED for the following action: 1. 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 Jesse Brown VA Medical Center (VAMC) (in Chicago, Illinois) from the Under Secretary for Health (USH), Veterans Integrated Service Network (VISN) director or a VHA medical facility director, and thereafter take all appropriate action. 2. Make arrangements to obtain the Veteran's most recent treatment records from the Jesse Brown VAMC (including any outpatient records, apart from quality assurance records already requested above). 3. Following the opportunity for the RO to initially adjudicate the referred claim for compensation under 38 U.S.C.A. § 1151 for residuals of cervical spine surgery, re-adjudicate the claims already on appeal. If the benefits sought are not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ K. Parakkal 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).