Citation Nr: 21065175 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-42 731 DATE: October 25, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from January 1967 to January 1969. Unfortunately, he died in November 2010. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated April 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Appellant's claim of entitlement to DIC under 38 U.S.C. § 1151, and service connection for the cause of the Veteran's death. In October 2014, the Appellant perfected a timely substantive appeal. In January 2018, the Appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with the record. In April 2018, the Board remanded the claim for further development, to include obtaining outstanding treatment records, including records of the Veteran's treatment at a VAMC emergency room on November 5, 2010, VA medical quality assurance review records regarding VA medical care provided to the Veteran prior to his death, and VA opinions addressing the Appellant's claims. See Board Remand dated April 19, 2018. Although November 5, 2010 VAMC emergency room treatment records appear to have been associated with the electronic claims file, the Board finds that there has not been substantial compliance with its April 2018 remand directives, necessitating another remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Medical Quality Assurance Review Records Subsequent to the Board's April 2018 remand, VA requested medical quality assurance review records from the VA Medical Center in Huntington, West Virginia (VAMC) in November 2018, May 2019, April 28, 2020, and June 5, 2020. However, the record does not reflect that the VAMC provided the requested records or a reply to VA's requests. In August 2020, VA informed the Appellant that it had made a total of four separate requests for medical quality assurance review records from the VAMC between November 2018 and June 2020 with "no reply to our requests" from the hospital. See VA correspondence dated August 13, 2020. The same day, VA issued a memorandum reflecting a formal finding that the requested records are unavailable and that further efforts to obtain them would be futile. See VA Memorandum dated August 13, 2020. VA is bound by the following regulatory provision when requesting records from a federal agency: VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to military records, including service medical records; medical and other records from VA medical facilities; records from non-VA facilities providing examination or treatment at VA expense; and records from other Federal agencies, such as the Social Security Administration. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Here, the record includes what appear to be two separate electronic requests for the records submitted to the VAMC in 2018 and 2019, to which no reply was received. VA took no further action for 18 months, making two additional requests for the records in April 2020 and June 2020. The record does not reflect that the VAMC has replied to any of these requests or that VA has received any reply from the Veterans Health Administration or VA General Counsel. The Appellant's representative points out in its August 2021 appeal brief that VA "appears to have 'assumed' that no medical quality assurance records were available due to the lack of response to their requests." See Informal Hearing Presentation by Veterans of Foreign Wars (VFW) received August 25, 2021 at pg. 2. The VFW emphasized, in part, that, no one at VA "picked up the phone and called the hospital to inquire. These are, after all, VA treatment records and the VA is part of the federal government. No one at the hospital actually informed [VA] that no such records existed; rather, the [VA] took it upon themselves to assume that they were not." Id. The Board agrees. Under 38 C.F.R. § 3.159(c)(2), VA was required to make "as many requests" as necessary to obtain the records. The absence from the claims file of the requested records or a reply from the VAMC indicating that the requested records do not exist or that the VAMC does not have them demonstrates that VA has not, to date, satisfied the requirements of 38 C.F.R. § 3.159(c)(2). Therefore, at this juncture, the efforts made by VA to obtain the records do not rise to the level of substantial compliance with the Board's April 2018 remand directives. See Stegall, supra. Accordingly, additional evidentiary development is needed, as set forth below, to address the Appellant's claims. VA Examiner The Appellant, through her representative, has questioned the competency of the October 2020 VA examiner who rendered opinions regarding the Appellant's claims, specifically, whether the examiner, "a practitioner of 'family medicine,' had the requisite skills and training to address all the questions posed by the Board." See Informal Hearing Presentation by VFW received August 25, 2021 at pg. 2. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence. However, if the Appellant wishes to challenge the competency of the October 2020 VA examiner, she may request the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 940 F.3d 1304, 1309 (2019). Therefore, the Board concludes that on remand, VA must provide the Appellant and her representative with the October 2020 VA examiner's curriculum vitae and other qualification information regarding her expertise in the medical field, and the information provided by VA must be associated with the electronic claims file. Id. As such, the Board will defer any finding on the adequacy of the October 2020 opinions pending further development on remand as set forth below. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Provide to the Appellant and her representative the curriculum vitae and other qualification information regarding the expertise in the medical field of the VA examiner who authored the October 14, 2020 medical opinion regarding the Appellant's claim under 38 U.S.C. § 1151. Associate all information provided with the electronic claims file. 3. Request from the Huntington, West Virginia VA Medical Center at 1540 Spring Valley Dr., Huntington, West Virginia 25704 AND Veterans Health Administration (VHA) at 810 Vermont Ave., NW, Washington, D.C. 20571 access to records of "medical quality assurance review" as defined in 38 U.S.C. § 17.500(c) conducted by the Huntington, West Virginia VA Medical Center or other entity regarding VA medical care, including emergency room care, the Veteran received from November 1, 2010 until his death on December 1, 2010. The letter requesting access to records of "medical quality assurance 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: a) Protected from disclosure by 38 U.S.C. § 5705; b) 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, c) The requested records or documents no longer exist or cannot be found. Any response must be in writing and documented in the electronic claims file. If the requested records do not exist or further efforts to obtain the records would be futile, issue a formal finding of unavailability of the requested records, notify the Appellant and her representative in accordance with 38 C.F.R. § 3.159(e), and associate the formal finding and the notice with the claims file. If the appropriate VHA official confirms that such records exist, but are privileged under the Quality Assurance Act, then forward the request to the Office of the General Counsel. If there is no reply to new requests for such records, then forward the request together with a copy of this Remand to the VA Office of the General Counsel for the North Atlantic District, 251 North Main Street, Winston-Salem, North Carolina 27155 AND the VA Office of General Counsel at 810 Vermont Ave., NW, Washington, D.C. 20571, detailing that records of "medical quality assurance review" have been requested in this case and the total number of unanswered requests for the records to date. If the appropriate VHA official and the General Counsel agree that the documents are privileged, this should be documented in the claims file. If the VHA official and the General Counsel conclude that the records are not protected and access is granted, request the "medical quality assurance" records and associate any copies obtained with the claims file. 3. IF, and only IF, the medical quality assurance records requested under Directive 3 (above) are received, forward the claims file, to include a copy of this Remand, to the VA examiner who authored the October 14, 2020 VA medical opinions addressing the Appellant's claim for service connection for the cause of the Veteran's death and her 1151 claim, if available, requesting that the newly received evidence be reviewed and addendums to the October 14, 2020 opinions be provided. Should the same examiner be unavailable, request new opinions from an appropriately qualified VA examiner and include the following directives 5 and 6. 4. Address the Appellant's claim for service connection for the cause of the Veteran's death AND her 1151 claim. 5. Although the examiner should review the entire claims file, the examiner's attention is directed to the following document files, which are identified by their VBMS labels and VBMS receipt dates in parenthesis: *Medical Treatment Record Government Facility (06/24/2011). VA treatment records dated November 30-December 1, 2010. *Medical Treatment Record Government Facility (07/26/2011).VA treatment records dated March 15, 2009 to November 13, 2010. *Medical Treatment Record Government Facility (10/20/2011). VA treatment records dated November 24, 2010 to December 1, 2010. *VA Examination (04/03/2012). *Any newly associated "medical quality assurance" records. Then, the examiner is asked to respond to the following: a) Cause of the Veteran's Death claim Provide an opinion as to whether the Veteran's service-connected diabetes mellitus type II and peripheral vascular disease contributed substantially or materially to cause his death. The examiner should address the Appellant's assertion that: i) The Veteran's death was caused by his service-connected diabetes mellitus type II and peripheral vascular disease, which triggered a series of medical problems, including gangrene, infection, an allergic reaction to antibiotic Vancomycin, continued use of Vancomycin at the direction of VA despite the allergic reaction, and neutropenia, resulting in the Veteran's development of pneumonia that caused his death. **The examiner is requested to address each of the immediate and underlying causes of death recorded in the December 2010 death certificate, and to differentiate between aspiration pneumonia and hospital-acquired pneumonia in rendering an opinion and rationale. b) Claim Pursuant to 38 U.S.C. § 1151 i. Provide an opinion as to whether the Veteran sustained additional disability during the time period in question due to any carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA facility care or medical treatment by VA in the treatment of the Veteran, including any failure to timely diagnose and/or treat any disease or disability? ii. Also determine whether any additional disability was an event not reasonably foreseeable following VA treatment. That is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment(s) at issue? **In answering the above, the examiner should specifically address the Appellant's assertions that: i) VA emergency room staff improperly refused to admit the Veteran to the Huntington VAMC for treatment of excessive edema and an extensive rash on his body; and ii) The Veteran developed pneumonia while a patient at Huntington VAMC because VA nurses did not follow proper precautions while the Veteran was receiving treatment in an isolation section of the hospital, including not wearing gloves, not using alcohol, and not washing hands before providing care to the Veteran. (Continued on the next page) The examiner should provide a detailed rationale for all opinions expressed. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Associate Counsel 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.