Citation Nr: 1320634 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-29 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left shoulder disability, to include degenerative joint disease, bursitis, and tendonitis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 Regional Office (RO) in Louisville, Kentucky, rating decision, which denied the claim on appeal. The Veteran had a local hearing before an RO hearing officer in October 2006. A transcript of that proceeding has been associated with the claims file. The Board notes the August 2006 statement of the case (SOC) also included the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for a cervical spine disability and left carpal and cubital tunnel syndromes. The Veteran properly appealed these issues in his August 2006 substantive appeal. However, the Veteran subsequently indicated during his October 2006 local hearing before an RO hearing officer that he wished to withdraw his appeal of these issues. As such, these issues are no longer on appeal before the Board. See 38 C.F.R. § 20.204 (2012). This remaining issue was denied in an April 2012 Board decision. However, an October United States Court of Appeals for Veterans Claims (Court) decision, based on an October 2012 Joint Motion for Remand, vacated and remanded this decision for further development. As such, this claim again returns before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Unfortunately, the Board finds that a remand is required in this case. This is a claim under the provisions of 38 U.S.C.A. § 1151, specifically alleging that the Veteran incurred an injury to his left shoulder during surgery (an ERCP procedure) at a VA medical facility in June 2004. Specifically, the Board notes that, in its prior April 2012 decision, it asserted that, while it did not attempt to obtain quality assurance (QA) records related to the Veteran's surgery, it felt that these records, under 38 U.S.C.A. § 5705, would be considered confidential with limited access, and therefore there was no breach in the duty to assist for the RO or the Board to not have attempted to obtain these records. However, in the October 2012 Joint Motion for Remand, Hood v. Shinseki, 23 Vet. App. 295 (2009), was cited, as well as General Counsel Precedent Opinion 1-2011. These documents were cited as indicating that QA records are not categorically privileged, rather, it is only upon the assertion of the Veterans Health Administration that these records may be considered to be confidential and privileged and thus beyond the reach of the duty to assist. Therefore, the Board finds that this claim must be remanded in order that an attempt may be made to request identified quality assurance documents from the VHA. In addition, in the most recent written brief presentation to the Board, dated May 2013, the Veteran's representative also indicated that they felt the most recent May 2011 medical opinion regarding this claim was inadequate, in that it failed to provide an adequate rationale and failed to adequately reconcile the 2011 medical opinion with the opinions contained in a March 2006 opinion. As such, the Board finds that a further comprehensive medical examination with opinion, taking into account all relevant evidence, should be obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should contact the Veteran and his representative and request that they specifically identify any quality assurance records they would like the RO to obtain, to include the previously requested VA Form 10-2366 and VA Form 2633. 2. After a response from the Veteran, please contact the VHA and request all identified quality assurance records, including those identified above. If the VHA declines to provide those records, on the basis that they either are unavailable or that they are confidential and privileged, a specific notation to that effect in the record should be made. 3. After the above development has been completed, and the relevant records associated with the claims file, or a notation made as to why they were not associated with the claims file, schedule the Veteran for an appropriate VA examination to determine whether the Veteran has any further disability that is the result of VA treatment, specifically as a result of June 2004 surgery during which he was allegedly inadequately sedated. A copy of the notice to report for this examination must be associated with the claims file. All necessary testing should be carried out in conjunction with this examination, the results of which should be reported in detail. The claims file and a copy of this remand should be provided to the examiner for review, particularly the June 2004 VA treatment records relating to the ERCP procedure, including all records of treatment relating to the procedure and any treatment for any additional left shoulder disability, to include degenerative joint disease, bursitis, or tendonitis. The examiner should also elicit a complete history from the Veteran. Following examination, interview of the Veteran, and review of the claims file, the examiner should provide an opinion regarding (1) the exact nature and pathology of any left shoulder disability; if found to have resolved, please note when such condition resolved (2) whether any such left shoulder disability was caused by VA medical care, and, if so, (3) whether carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in rendering such care proximately caused the Veteran's left shoulder disability; and, in the alternative (i.e., regardless of carelessness, negligence, etc.), please address whether any additional left shoulder disability was due to an event not reasonably foreseeable. It would be helpful if the VA examiner would answer the above questions (2) and (3) in terms of whether it is "at least as likely as not" (i.e., to at least a 50-50 degree of probability). A discussion of the complete rationale for all opinions expressed, to include discussion of relevant evidence, should be included in the examination report. 3. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). _________________________________________________ MICHAEL LANE 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).