Citation Nr: 20004765 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-00 464 DATE: January 21, 2020 REMANDED The appeal for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for radiculopathy of the right upper extremity is remanded. REASONS FOR REMAND The Veteran had active service from September 1965 to July 1969. He was awarded the Combat Action Ribbon. This matter comes before the Board on appeal from a September 2017 rating decision. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in July 2019. A transcript is in the record. *** The Veteran contends that the right shoulder surgery he had at a VA facility on December 8, 2014 caused him to have chronic radiculopathy and other neurological impairment of his right arm. He alleges that his disability is the result of fault on the part of VA. He believes that this error was made by either the anesthesiologist in administering his nerve block, or by the orthopedic surgeon during the actual surgery. He further contends he was never informed that his current disability could be a possible outcome of his surgery. The evidence includes a June 2017 record review and opinion by a VA attending physician. This physician notes that the Veteran’s complete consent form was not contained in his medical records but preceded to provide the requested opinions based on what he believed the content of a consent form would be for the type of surgery in question. However, the Veteran has testified that he was not informed that a possible consequence of his surgery could be chronic radiculopathy. The Board observes that a VA treatment record dated December 2, 2014 states that the Veteran’s consent was obtained on that date, and the entire form could be accessed through Vista Imaging. There is no indication in the record that this consent form was ever obtained or that there was any attempt made to obtain this form. Given that the content of the Veteran’s consent is relevant to his claim, appropriate attempts must be made to obtain his entire consent form and add it to the claims file. Similarly, the record shows that the Agency of Original Jurisdiction (AOJ) made request for Quality Assurance Investigation Reports from the VA Medical facility in question in June 2017. Unfortunately, these reports are not contained in the record and there is no reply to these requests. Therefore, the Board is unable to determine if these records were obtained but not placed in the record, if they were not obtained, or if there was simply never any such investigation. An additional request for this report should be made. If obtained, the records should be placed with the claims folder. If the records are unavailable or never existed, a negative reply should be placed in the record. In this regard, the Board notes that VA's duty to assist requires that the Board request access to any quality assurance records or documents relevant to a claim, and, if the appropriate Veterans Health Administration officials deny the request, to appeal the determination to VA's General Counsel. VAOPGCPREC 1-2011. The Board acknowledges that medical quality-assurance records are confidential and privileged documents and may not be disclosed except as provided by statute. See 38 U.S.C. § 5705(a); see also Hood v. Shinseki, 23 Vet. App. 295, 299-303 (2009). The Board also acknowledges that quality assurance records may not be disclosed to VA adjudicators, including the Board, but notes that VA's Office of General Counsel is authorized to review such records to determine if they in fact are of the type protected from disclosure. In light of VA's duty to assist, such records must be sought and, if necessary, reviewed by General Counsel, with any relevant information which may be disclosed included for consideration in the adjudication. Additionally, given that the VA opinion was obtained without the complete record, a new outside medical opinion or opinions must be obtained on remand, pursuant to the provisions of 38 U.S.C. § 5109 (2012). The nature of the claim requires expertise in both orthopedic surgery and anesthesiology. Therefore, the opinion must be obtained from someone with the training and expertise to address both fields. If no such expert is available, then separate opinions must be obtained from someone with expertise in orthopedic surgery and then someone with expertise in anesthesiology. This matter is REMANDED for the following actions: 1. Obtain from Vista Imaging or other sources a copy of the complete surgical consent form signed by the Veteran on or about December 2, 2014 in preparation for the right shoulder surgery that was performed on December 8, 2014. If this record is unable to be obtained, a memorandum should be placed in the claims folder stating it cannot be obtained and that additional attempts to obtain it are likely to be unsuccessful. 2. Obtain a copy of any Quality Assurance Investigation Reports relating the Veteran’s right shoulder surgery performed on December 8, 2014. (a.) IF it is determined that such records do not exist or have been destroyed, documentation to that effect is to be provided and placed in the claims file. (b.) IF such records do exist, a determination is to be made regarding whether those records may be released and a statement regarding that determination should be included in the claims file. Then, proceed, as below: (a.) In the event that Quality Assurance records are found to exist and are released for review and consideration in the adjudication, a new adjudication, to include consideration of these records, is to be performed with respect to the disability for which entitlement to VA benefits under 38 U.S.C. § 1151 is claimed. (b.) In the event that Quality Assurance records are found to no longer exist or to have never existed, reconsideration of the claims of entitlement to VA benefits under 38 U.S.C. § 1151 is to be performed. (c.) In the event that Quality Assurance records are found to exist but are not released for consideration by a VA adjudicator, the proper steps to appeal this matter to VA’s Office of General Counsel for their review of the records is necessary per the abovementioned 2011 OGC opinion. 3. Only after the records requested above have been obtained or determined to be unobtainable, notify the Veteran and her representative that VA is requesting an advisory medical opinion regarding entitlement to compensation pursuant to 38 U.S.C. § 1151 for radiculopathy of the right upper extremity. 4. Then, obtain an advisory medical opinion from an independent medical expert (or, if necessary, experts) NOT employed by VA (per 38 U.S.C. § 5109), with the qualifications and experience necessary to provide opinions in the fields of both orthopedic surgery and anesthesiology Provide the medical expert(s) with a copy of this Remand for a summary of relevant information and background. The medical expert (or experts, if appropriate) is to address the following: (a) Does the medical evidence of record show that the Veteran incurred a disability manifested by radiculopathy and related neurological impairment of the right arm which was at least as likely as not (probability 50 percent or greater) proximately caused by the treatment at VA, particularly the right shoulder surgery on December 8, 2014? If so, please describe the resulting injury or disability and explain how it was caused by VA treatment or a failure to diagnose. (b) IF a disability or injury resulted from VA treatment, to include failure to diagnose, was that in turn caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? If so, please provide a description of the type of fault and explain the basis for this determination. In answering this question, please address whether the accepted standard of care for a reasonable health care provider was followed.   (c) Regardless of the answer provided to the questions above, please offer an opinion as to whether or not the injury and/or disability to the Veteran’s right shoulder and right arm to include the radiculopathy and related neurological impairment was reasonably foreseeable. In addressing this, please indicate any factors that rendered the outcome either reasonably foreseeable or not reasonably foreseeable. If the record indicates that the Veteran was advised of the possible outcome at any point, please note that in the opinion. Please provide a written, comprehensive explanation of the reasons or basis for the opinions and answers provided. If specific medical research or literature is used to formulate these opinions, please provide a copy of the applicable source document or the information/full citation necessary to view it. 5. After obtaining a competent expert medical opinion on the matter, furnish a copy of the opinion to the Veteran and his representative and allow them adequate time to submit any response. (Continued on the next page)   6. Re-adjudicated this matter. If the benefit sought on appeal is not granted in full, the AOJ must issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.