Citation Nr: 22019073 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-12 924 DATE: March 31, 2022 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a June 2012 left hip surgery is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from February 1995 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran asserts that faulty VA care during left hip replacement surgery in June 2012 caused additional disability. The Board notes that the Veteran's representative has requested that VA medical quality assurance records be obtained in conjunction with this claim. See March 2022 Appellate Brief. A review of the evidence of record demonstrates that while the Veteran's VA treatment records are associated with the claims file, there are no notations regarding the receipt of VA medical quality assurance records. In addition, these records have not been requested by the RO at any point during the appeal period. VA's duty to assist requires agencies of original jurisdiction (AOJs) and the Board to request access to any quality assurance records or documents relevant to a claim, provided the claimant furnishes information sufficient to locate the records or documents. Also, if the appropriate Veterans Health Administration (VHA) officials deny the request on the basis that the records or documents may not be disclosed because they are privileged and confidential, the duty to assist requires AOJs and the Board to appeal this determination to VA General Counsel. VAOPGCPREC 1-2011. The Board acknowledges that medical quality assurance records are confidential and privileged documents, which 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 generally may not be disclosed to VA adjudicators. However, VA's Office of General Counsel is authorized to review such records to determine if they are in fact of the type protected from disclosure or if they may be disclosed for the limited purpose of aiding in the adjudication of a 38 U.S.C. § 1151 claim. In light of VA's duty to assist, the AOJ must attempt to obtain the requested quality assurance records, and, if necessary, have the records reviewed by VA General Counsel to determine if all or some of the available records may be released, with any relevant information that may be disclosed included for consideration in the adjudication of the Veteran's claim. See VAOPGCPREC 1-2011. Alternatively, if the records no longer exist (e.g. have been destroyed), the RO/AOJ should confirm this fact for the record. The matter is REMANDED for the following action: 1. Request and associate with the record all quality assurance records related to the Veteran's June 2012 VA left hip surgery at the Birmingham VA Medical Center, including any available records pertaining to the medical personnel involved in the surgery. If it is determined that such records do not exist or have been destroyed, documentation to that effect should be provided and placed in the claims file. If the quality assurance records exist but are determined not to be releasable for consideration by a VA adjudicator, the proper steps must be taken to appeal this determination to VA's Office of General Counsel (OGC) so that OGC may review the records according to VAOPGCPREC 1-2011. If the access to the quality assurance records remains denied after VA General Counsel review, documentation as to the reason for this determination must be placed in the claims file. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.