Citation Nr: 20020161 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 14-14 220 DATE: March 18, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability, to include Peyronie’s disease and varicocele cyst, as result of VA left hernia repair surgery is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1984 to June 1987, and he had additional service in the United States Army Reserves, to include active duty for training from February 1, 1990 to February 9, 1990. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a May 2017 Statement of the Case, by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2019, the Board remanded the issues for further development. The Board directed the RO to obtain additional records related to the claims. The case has since been returned to the Board for appellate review. 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability, to include Peyronie’s disease and varicocele cyst, as result of VA left hernia repair surgery is remanded. The Veteran asserts that he incurred additional disability, to include Peyronie’s disease and varicocele cyst, as result of VA treatment from left hernia repair surgery in May 2013. The Veteran’s representative asserts that VA should make attempts to obtain quality assurance records from the Hampton VAMC in connection with the Veteran’s claim for benefits under 38 U.S.C. § 1151.See December 2017 Appellant Brief. The Veteran seeks compensation for Peyronie’s disease and varicocele cyst under 38 U.S.C. § 1151, providing for compensation for a veteran's qualifying additional disability as if the additional disability were service-connected, if VA care caused such additional disability (including aggravation of an existing disease or injury), and the proximate cause of the disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Board notes that VA’s medical quality-assurance program consists of systemic healthcare reviews carried out by or for VA for improving the quality of medical care or improving the use of healthcare resources in VA medical facilities. Such data may relate to the structure, process, or outcome of healthcare provided by VA. See 38 U.S.C. § 17.500(c). Quality assurance records may be privileged and confidential. See 38 U.S.C. § 5705(a); 38 C.F.R. § 17.501. There are exceptions to this general rule. See 38 U.S.C. § 5705(b); 38 C.F.R. § 17.501(g). VA has a duty to assist claimants in obtaining evidence to substantiate all substantially complete initial and supplemental claims, and when a claim is returned for readjudication by a higher-level adjudicator or the Board after identification of a duty to assist error on the part of the agency of original jurisdiction (AOJ), until VA issues notice of a decision on a claim or returned claim. VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 C.F.R. § 3.159(c). Before quality assurance documents may be withheld under 38 U.S.C. § 5705, VA must make some showing as to compliance with its regulatory obligation to describe, in advance and in writing, the quality assurance activity it seeks to withhold as privileged. See Hood v. Shinseki, 23 Vet. App. 295, 301-03 (2009). Here, the record reflects that the AOJ made reasonable efforts to locate and obtain any relevant quality-assurance records, however, the AOJ did not notify the Veteran if such records could not be found or are being withheld. Because VA’s duty to assist the Veteran in obtaining quality-assurance records has not been fulfilled with respect to his claim for § 1151 compensation for Peyronie’s disease and varicocele cyst, the Board will remand so that the AOJ may attempt to secure the identified records. See 38 C.F.R. § 3.159(c). Unfortunately, as discussed above, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to compensation under 38 U.S.C. § 1151 for additional disability, to include Peyronie’s disease and varicocele cyst, as result of VA left hernia repair surgery. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all relevant treatment records relating to the remanded issues to the extent possible. All records/responses received must be associated with the Veteran's claims folder. 2. Undertake appropriate development to request access to records of “quality-assurance” review as defined in 38 U.S.C. § 17.500(c) from the Hampton VA Medical Center and the providers who performed the May 2, 2013 surgery on the Veteran. This action must fully comply with 38 U.S.C. § 5705(a) and Hood, supra, and be in accordance with VAOPGCPREC 1-2011. Thereafter take appropriate action to associate the records with the Veteran’s claims folder. If the latter quality-assurance records exist but access is denied, the basis for the denial must be recorded in the Veteran’s claims folder. If the records cannot be located or do not exist, a clear negative response should be provided and associated with the Veteran’s claims folder. The Veteran should be properly notified in accordance with 38 C.F.R. § 3.159(e). 3. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.