Section 1151 - Staph Infection: The VA cannot Hide Behind the Quality Assurance Program

Section 1151 – Staph Infection

Hiding behind the Quality Assurance Program

The case of Werner G. Hood v. Eric K. Shinseki, Opinion Number 07-2564, decided November 25, 2009, remanded a claim for compensation pursuant to 38 U.S.C. § 1151 which related residuals from a staph infection.

The veteran underwent bypass surgery at the VA Medical Center in Charleston, South Carolina and subsequently had to undergo another procedure to remove a staph infection near his surgical wound. The veteran reported that other bypass surgery patients also developed staph infection within days of his surgery and reported that he had been told that bacteria had been discovered in the ICU.

The veteran filed a claim for disabilities that began with the staph infection and the Regional Office denied the claim. The Board of Veteran Appeals remanded the case and required the VA under its duty to assist to attempt to determine if in fact hospital staff had reported to patients the presence of staphylococcus aureus. The Charleston VAMC refused to forward an existing report to the VA Appeals Management Center claiming statutes and regulations permit the release of a quality assurance review.

In lieu of the report, the VA sought an expert medical opinion that reported that it was impossible to know if the fact that multiple people developed a staph infection was a statistical aberration or a result of negligence.

Upon appeal, the veteran argued that (1) the Board erred by issuing a decision without the existing report conducted by the Charleston VAMC or (2) that the Court should make an in camera review of the report.

The Court rejected the possibility of an in camera review as its jurisdiction only includes that information that is part of the record before the Board of Veteran Appeals at the time of its decision.

Regarding the first issue, the Court determined that merely failing to obtain the report did not necessarily create a Stegall violation. The Court stated, “if the expert opinion that the Board relied upon in this case is sufficient to address the question of VA negligence, then the Board has substantially complied with its own remand order”. However, the Court determined the relied upon expert medical opinion was at best equivocal about negligence and as a result the case had to be remanded.

Then, recognizing the evidentiary development problems with the case, the Court went further and addressed the undisclosed report. The Court explained that Congress mandated a quality assurance program to monitor and evaluate VA health care. These documents might be confidential and privileged except for certain exceptions. The “might” be confidential distinction is based upon the fact that the facility director must in advance and in writing describe those quality assurance activities and the results thereof as privileged and confidential. Importantly, in this case, the veteran claimed that the undisclosed report was not described in advance and in writing as a part of the quality assurance program.

The Court seized on the apparent failure to label in advance and in writing the report a part of the quality assurance program to require upon remand that the BVA address this issue. The Court then also more fundamentally considered an exception to the privileged natured of any quality assurance work product which allowed its use within the VA. The Court noted that the BVA was a subset of the VA and, therefore, questioned why that alone did not justify the BVA looking at the report.

The result is that a veteran can now easily argue that the BVA cannot avoid looking at data resulting from a quality assurance program.

Decided by Chief Judge Greene, and Lance and Schoelen, Judges.

Duty to Assist

The case of Theodore J. Segars v. Eric K. Shinseki, Opinion Number 08-1449, decided November 20, 2009, considered the VA’s duty to assist by collecting records when the veteran could later find relevant records that the VA did not find and the Board did not consider.

In a far reaching ruling the Court considered whether a veteran’s brief may refer to documents that are not a part of the record in order to demonstrate that the VA did not fulfill its duty to assist. The case had an interesting procedural posture which was important to the outcome.

The veteran sought and was denied benefits for adenocarcinoma of the colon. The veteran filed an opposed motion to remand his appeal asserting that documents were found that showed the VA did not satisfy its duty to assist. Attached to the motion were those documents. The veteran argued the documents should have been included in the record prior to the Board decision and that the appeal should be remanded to the Board for readjudication with the documents. After a telephone conference involving the VA, veteran’s counsel, and a representative from the court, the motion to remand was withdrawn. Later, the veteran filed a brief which in part argued the VA did not fulfill its duty to assist by obtaining relevant records.

The documents in issue are two part. First, was a report from a pathologist that is referenced by a later statement given by the pathologist that was in the record. Second, the veteran noted that he was represented by another attorney on the date of the missing pathologist report in a matter related to the appealed claim and that the VA had a duty to contact the previous attorney to determine if any additional relevant records existed. Specifically, the veteran asserted that prior counsel had a deposition of a physician that would be relevant to the claim on appeal.

The Court limited itself to determining whether the veteran could include descriptions of the missing documents in its brief as part of his argument that the VA failed the duty to assist by not obtaining the documents. The Court had no problem allowing reference to the missing pathologist report but limited such references to information from the pathologist statement that was part of the record. However, the court refused any reference to the physician deposition on the grounds that the deposition was not referenced in any documents in the record.

The Court reasoned that while it was determining whether the VA satisfied its duty to assist, the content of the documents or even their existence is irrelevant to the question of whether the Secretary had a duty to assist in obtaining adequately identified relevant records. This harsh ruling was somewhat ameliorated by reference in a footnote that statute “clearly presumes that any document referred to in the record exists and places the burden on the Secretary to demonstrate otherwise.” Curiously, the Court goes on to say, “When the Secretary attempts to rebut the presumption, then the existence of documents not contained in the record may be relevant.”

This statement is curious because a central point of the Court’s decision is that its scope is limited by statute to “the record of proceedings before the Secretary and the Board”.

Additionally, the Court also worked hard to limit its need to make a far reaching decision by noting that the missing pathologist report was referenced by another report. In short, the Court determined that in this case they could simply use the references in the record to one of the “missing” pieces of evidence to consider whether the duty to assist was fulfilled. However, while doing so, the Court appears to have actually gone further and shut off any further reference to non-record materials in the future.

The case leaves questions and practical difficulties for veterans and attorneys who discover too late that the VA dropped the ball in searching for documents and records. If you can somehow relate the missing records back to something in the record, you have a chance, otherwise, the VA gets to make a mistake and enjoy the fruits of that mistake.

Perhaps one argument that could be advanced is to use the Court’s language. Perhaps the materials, records, or documents are before the “Secretary” and not the “Board”. If the materials were in the Secretary’s embrace (in a medical file somewhere in a VA hospital) would that mean that the Court could consider it when addressing whether the VA fulfilled its duty to assist? A question that will no doubt come one day.

Decided by Hagel, Lance, and Schoelen, Judges.