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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 07-2564

WERNER G. HOOD, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided November 25, 2009)

Mark R. Lippman, for The Veterans Law Group, of La Jolla, CA, was on the brief for the

appellant.

Thomas E. Sullivan, with whom John H. Thompson, Acting General Counsel, R. Randall

Campbell, Assistant General Counsel, and Gayle E. Strommen, Deputy Assistant General

Counsel, all of Washington, D.C., were on the brief for the appellee.

Before GREENE, Chief Judge, LANCE, and SCHOELEN, Judges.

LANCE, Judge: The appellant, Werner G. Hood, through counsel, appeals an August 10,

2007, decision of the Board of Veterans' Appeals (Board) denying compensation under

38 U.S.C. § 1151 for additional disabilities as a result of VA medical treatment from April to

May 2000, including residuals of a staphylococcus (staph) infection. The parties each filed

briefs and the appellant filed a reply brief. The appellant also filed a motion to expedite the

appeal pursuant to U.S. VET. APP. R. 47(a). For the reasons that follow, the Court will vacate the

Board decision and remand the matter for further adjudication.
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I. FACTS

The appellant served on active duty in the U.S. Army from March 1945 to January 1947.

Record (R.) at 2, 12, 38. In March 2000, he underwent coronary artery bypass graft (CABG)

surgery at the Charleston, South Carolina, VA Medical Center (VAMC). R. at 66, 402, 723-25,

1026. Three weeks after the surgery, he returned to the VAMC, complaining of fevers and pain

and a skin irritation near his surgical wound. R. at 392-93. He thereafter underwent an

additional procedure to remove a staph infection. Id.

In March 2002, the appellant filed a claim for disabilities that he alleged began as a result

of the staph infection. R. at 362. In support of his claim, the appellant submitted a statement of

another veteran, Bruce A. Pauly, who had also undergone heart surgery at the Charleston VAMC

within days of the appellant's procedure. R. at 367. Mr. Pauly stated that he also developed a

staph infection that required surgical treatment and that he thought that "there were four other

open-heart patients that came down with this infection." Id. Mr. Pauly also stated that he was

told by a physician that bacteria had been discovered in the Charleston VAMC intensive care

unit (ICU) and that the nurses there were the likely carriers. R. at 367. The appellant's wife

testified at a Board hearing that she had learned that there were at least four other veterans who

contracted a staph infection in the Charleston VAMC ICU during the same time period. R. at

616. 

In October 2002, the Columbia, South Carolina, regional office (RO) denied the

appellant's claim for compensation for a staph infection and related conditions. R. at 512-19.

The appellant thereafter disagreed and perfected an appeal. R. at 521, 542. In June 2005, the

Board remanded the matter for further development, finding that

any determination by VA that VA nurses in the VAMC Charleston ICU

communicated staphylococcus aureus to patients at approximately the period of

time in which [the appellant] developed such a post-operative infection would be

pertinent to his claim . . . and that VA's duty to assist . . . requires an attempt to

find out if in fact there was such a determination[.]

R. at 636. The Board specifically instructed VA's Appeals Management Center (AMC) to

contact the Charleston VAMC to determine whether that facility, or any other VA office, had

undertaken an investigation into the infections and to request a copy of any related report,
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"redacted in accordance with the Privacy Act, if necessary." Id. The Board further directed that,

if the AMC received information implicating VAMC employees in the transmission of the

infection to one or more veterans who were in the ICU during the time period in question, then

the AMC should refer the appellant's hospital records to an infectious disease specialist to

determine whether the appellant's staph infection was due to VA carelessness or negligence,

error in judgment, lack of proper skill, or other incidence of fault by VA nurses, housekeeping

staff, or other VA employees. R. at 637.

In October 2005, the AMC requested that the Charleston VAMC forward a copy of any

report that was generated after an investigation or inquiry into the infections. R. at 654. The

Charleston VAMC informed the AMC that "a focused review was completed," but that "the

[q]uality [a]ssurance statutes and regulations . . . do not permit us to release this review." R. at

657. In December 2005, the AMC informed the appellant that the VAMC refused to release the

report. R. at 663-64.

In July 2007, in lieu of the report of the VAMC's investigation into the infections, the

Board sought an expert medical opinion to determine whether the appellant's condition was

caused by VA negligence. R. at 1142-47, 1161-62. The specialist, Lawrence L. Creswell, M.D.,

opined that:

Deep sternal wound infection is an uncommon, but foreseeable complication

associated with CABG. Given the patient's preoperative demographics and

medical history, his risk for developing this complication, in my estimation, was

1% to 4%. From the medical record, there is no evidence of negligence or lack of

due care or skill in regard to the medical care he received from the VA.

Evidence confirming that up to four persons receiving treatment at the VAMC

Charleston ICU at approximately the same time as the appellant developed

similar infections would not necessarily demonstrate negligence or lack of due

care. Such an occurrence could simply be a statistically unlikely happening.

It is impossible, in retrospect, to know if a cluster of similar infections were

simply a statistically unlikely happening or due to a particular source of infection.

Given a cluster of such infections, the VAMC Charleston would be obligated to

investigate the possibility that a provider working in the ICU could be a carrier of

the particular infection. The occurrence of a cluster of similar infections might

also suggest the need for better isolation of patients in the ICU.
 The appellant filed his opening brief on July 21, 2008. On October 22, 2008, the appellant moved to amend his brief 1

because his original brief cited to a supplemental record. The appellant's motion to supplement the record, however, was

denied by the Court. The appellant thereafter filed his amended brief, which is substantively the same as his original

brief, on November 25, 2008.

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R. at 1162.

In August 2007, the Board denied the claim, finding that, while the appellant's infection

was unquestionably the result of VA medical treatment, it was not proximately due to VA

carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on

the part of VA's treatment providers, and that any residual disabilities were reasonably

foreseeable. R. at 2.

II. ARGUMENTS

The appellant raises two related arguments in his opening brief. His primary argument 1 

may be construed as alleging that the Board, in rendering the decision on appeal without the

benefit of the VAMC report, failed to comply with its own previous remand order directing the

AMC to obtain the report. Appellant's Amended Brief (Appellant's Br.) at 6. He also contends

that he is "entitled to an in camera review by this Court of any report or document concerning"

the staph infection that he contracted at the Charleston VAMC. Id. at 5. 

The Secretary argues that the Court should affirm the Board's finding that the appellant is

not entitled to benefits under section 1151 because the decision "is plausibly based on the

evidence of record and is supported by an adequate statement of reasons or bases." Secretary's

Brief (Secretary's Br.) at 7. With regard to the appellant's argument, he contends that the Court

does not have the authority to "conduct an in camera review of privileged documents." Id. at 10.

Even if the Court had such authority, the Secretary argues, the Court does not have jurisdiction

to review documents not contained in the record of proceedings before the Board. Id. at 10-11.

III. ANALYSIS

The appellant's claim is one for disabilities that he suffered as the result of VA medical

treatment and is, therefore, governed by 38 U.S.C. § 1151. As the appellant filed his claim after

1997, the amended version of section 1151, which requires a claimant to demonstrate fault on
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the part of VA, applies in this case. See Brown v. Gardner, 513 U.S. 115 (1994) (invalidating

VA's prior regulation that read a fault requirement into the pre-1997 version of section 1151);

Boggs v. West, 11 Vet.App. 334, 343-44 (1998) (noting that the amended version of section 1151

applies only to claims filed on or after October 7, 1997, as explicitly mandated by Congress);

Pub. L. No. 104-204, § 422(b)(1), (c), 110 Stat. 2926-27 (1996) (amending section 1151, in

response to the decision in Gardner, to incorporate a fault requirement and mandating that those

amendments were applicable only to claims filed on or after October 1, 1997). Pursuant to the

amended version of 38 U.S.C. § 1151, compensation will be awarded for (1) an additional

disability that (2) is not the result of the veteran's willful misconduct, (3) was "caused by hospital

care, medical or surgical treatment, or examination furnished the veteran under any law

administered by the Secretary," and (4) was proximately caused by "carelessness, negligence,

lack of proper skill, error in judgment, or similar instance of fault on the part of the Department

in furnishing the hospital care, medical or surgical treatment, or examination." 38 U.S.C.

§ 1151(a)(1)(A) (emphasis added); see also 38 C.F.R. § 3.361 (2009).

In this case, the first three of the aforementioned "elements" of a section 1151 claim are

undisputed. R. at 2. That is, as the Board explained, the appellant has an additional

disability—the staph infection—that is not the result of his own willful misconduct and was

caused by VA medical treatment. Id. The only remaining question, therefore, is whether the

infection was proximately caused by some fault on the part of the Charleston VAMC.

A. Board's Reliance on a Medical Opinion in Lieu of the VAMC Report

It is clear that the Board understood that the gravamen of the appellant's claim is the

allegation of VA negligence because, as noted above, it originally remanded the appellant's

claim after finding that it could not resolve the question of fault without further information

concerning the VAMC's investigation of the infections. R. at 636. The appellant argues that the

Board's failure to obtain the VAMC report constitutes noncompliance with its earlier remand

order. Appellant's Br. at 6; see Stegall v. West, 11 Vet.App. 268, 271 (1998) (holding that "a

remand by this Court or the Board imposes upon the Secretary . . . a concomitant duty to ensure

compliance with the terms of the remand"). 
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Contrary to the appellant's assertion, the mere fact that the Board did not obtain the

VAMC report is not necessarily a violation of Stegall. Instead, 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. See D'Aries v. Peake, 22 Vet.App.

97, 105 (2008) (substantial compliance, not strict compliance, is required under Stegall). A

cursory review of Dr. Creswell's opinion, however, reveals that it is, at best, equivocal as to the

central question of VA negligence. Indeed, the fact that Dr. Creswell found it "impossible . . . to

know if a cluster of similar infections were simply a statistically unlikely happening or due to a

particular source of infection," should have signaled to the Board that the medical opinion was

speculative and of little probative value. See Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009)

(holding doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange

exposure was speculative); Bloom v. West, 12 Vet.App. 185, 187 (1999) (noting that the use of

the term "could," without other rationale or supporting data, is speculative); Goss v. Brown,

9 Vet.App. 109, 114 (1996) (noting that the use of the phrase "could not rule out" was too

speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992)

(holding that medical opinions are speculative and of little or no probative value when a

physician makes equivocal findings such as "the veteran's death may or may not have been

averted"). Accordingly, to the extent that the Board intends to rely on a medical opinion in lieu

of the VAMC report for the purposes of determining whether VA was at fault in causing the

staph infections, it must obtain a more definitive statement than that offered by Dr. Creswell.

See Stegall, supra. 

Moreover, the Secretary's assertion that Dr. Creswell's opinion provides a "plausible

basis" for the Board's decision to deny the appellant's claim is flawed. Secretary's Br. at 6. The

Court reviews factual findings under the "clearly erroneous" standard such that it will not disturb

a Board finding unless, based on the record as a whole, the Court is convinced that the finding is

incorrect. See Padgett v. Nicholson, 19 Vet.App. 133, 147 (2005) (en banc) (noting that a Board

finding "'is "clearly erroneous" when although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.'" (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (internal citations
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omitted)). Whether a medical opinion is adequate is a finding of fact that the Court reviews

under the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries, 22 Vet.App. at 104.

In this case, the Court is definitely and firmly convinced that the Board erred in finding

that the equivocal opinion of Dr. Creswell—the only evidence of record that could be construed

as negative—was adequate and was, therefore, a sufficient basis upon which to deny the

appellant's claim. See Padgett and D'Aries, both supra. Accordingly, remand is necessary so

that the Board can readdress the question of VA negligence. See Tucker v. West, 11 Vet.App.

369, 374 (1998) ("[W]here the Board has incorrectly applied the law, failed to provide an

adequate statement of reasons or bases for its determinations, or where the record is otherwise

inadequate, a remand is the appropriate remedy.").

B. Availability of the VAMC Report

Although the Court has concluded that the Board clearly erred in relying on Dr.

Creswell's opinion, the question remains whether the Board correctly determined that the VAMC

report is privileged and confidential. See R. at 3-4. The Court will, therefore, address the

appellant's arguments pertaining to the confidentiality of the VAMC report so that, on remand,

the Board may properly consider this issue in the first instance. See Quirin v. Shinseki,

22 Vet.App. 390, 395 (2009) (noting that the Court may provide guidance on additional issues to

ensure a proper decision on remand).

As noted, the appellant alleges that the Board failed to comply with its own remand order

by not obtaining the VAMC report. App. Br. at 6. Specifically, he alleges (1) that the Secretary

failed to describe, in advance and in writing, the VAMC report in question as a quality assurance

document; and (2) that the Court, therefore, should review the VAMC report, in camera, to

determine whether VA may properly withhold it as confidential. App. Br. at 6-8.

1. Legal Framework Governing Quality Assurance Activities

Congress has mandated that the Secretary establish a "quality-assurance program" to

"monitor and evaluate the quality of health care furnished by" VA. 38 U.S.C. § 7311(a).

Among other things, the quality assurance program requires that the Secretary must "periodically

evaluate . . . whether there are significant deviations in . . . morbidity rates for surgical
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procedures performed" by VA as compared to prevailing national standards. § 7311(b)(1)(A).

The statute defines a "medical quality-assurance program" as a 

Department systemic health-care review activity designated by the Secretary to be

carried out by or for the Department for either [improving the quality of medical

care or improving the utilization of health-care facilities].

38 U.S.C. § 5705(c)(2). With some exceptions, records and documents created by VA as part of

a quality assurance program "are confidential and privileged and may not be disclosed to any

person or entity." § 5705(a). Specifically, the Secretary must disclose quality assurance

documents to a federal agency or private organization, "if such record or document is needed by

such agency or organization to perform licensing or accreditation functions" for, or to monitor,

VA healthcare facilities. § 5705(b)(1)(A). The Secretary must also release such records to a

federal executive agency if that agency requires the documents "for participation by [VA] in a

health-care program with such agency or provider." § 5705(b)(1)(B). A criminal or civil law

enforcement agency responsible for "the protection of the public health or safety" may access the

records through a written request. § 5705(b)(1)(C). The Secretary must release the records to

"health care personnel, to the extent necessary to meet a medical emergency affecting the health

or safety of any individual." § 5705(b)(1)(D). Additionally, section 5705 does not prohibit the

release of medical quality assurance records within VA. See § 5705(b)(5) ("Nothing in this

section shall be construed as limiting the use of [medical quality assurance records] within the

Department."). 

Regulations promulgated by the Secretary define the nature and the scope of the

documents considered confidential and privileged under 38 U.S.C. § 5705. See 38 C.F.R.

§§ 17.500 through 17.511. Among these are "[m]onitoring and evaluation reviews conducted by

a facility," including "[m]ortality and morbidity reviews" and "[i]nfection control review and

surveillance." § 17.501(a)(1), (a)(1)(vi) & (a)(1)(vii). Also included are "[f]ocused reviews

which address specific issues or incidents," reviews that target specific facilities, and reviews

conducted by external entities to assess facility compliance with VA program requirements.

§ 17.501(a)(2)-(4). A variety of documents are explicitly exempted from the confidentiality

requirements. See § 17.501(g)(1)-(15). For example, quality assurance documents that do not

identify "either implicitly or explicitly, individual practitioners, patients, or reviewers" are not

considered privileged and confidential. § 17.501(c)(1). Similarly, "[s]ummary documents" that
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contain "major overall findings, but which do not identify individual healthcare practitioners,

even by implication" are not confidential. § 17.501(g)(2). Importantly, in order for the Secretary

to properly withhold a document as privileged, the underlying activity must comply with the

requirements of 38 C.F.R. § 17.501(b), which reads,

The Under Secretary for Health, Regional Director or facility Director will

describe in advance in writing those quality assurance activities included under

the classes of healthcare quality assurance reviews listed in paragraph (a) of this

section. Only documents and parts of documents resulting from those activities

which have been so described are protected by 38 U.S.C. § 5705 and the

regulations in §§ 17.500 through 17.511. If an activity is not described in a VA

Central Office or Regional policy document, this requirement may be satisfied at

the facility level by description in advance of the activity and its designation as

protected in the facility quality assurance plan or other policy document.

2. In Camera Review

Taking the appellant's latter contention first, the Court concludes that the argument fails

in two respects. First, to the extent that any appellate court would undertake in camera review of

evidence, such action is typical only when the evidence in question was first reviewed in camera

by the lower court. See Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235,

1262 n. 26 (11th Cir. 2008) (conducting in camera review of documents that the district court

had previously reviewed in camera, but noting that "we do not suggest that an appellate in

camera review is appropriate in any other case"); Hale v. U.S. Dep't of Justice, 99 F.3d 1025,

1029 (10th Cir. 1996) (noting that, where "the district court's conclusions were based on an in

camera review of the documents," the reviewing court may exercise its discretion to review the

documents in camera). Whether the Court may exercise its discretion to review documents that

were reviewed in camera by the Board is a question that we need not reach, however, as neither

party disputes that the Board did not have access to the investigative report at issue. 

Second, and more important, the Court does not have jurisdiction to review evidence that

was not before the Board. 38 U.S.C. § 7252(b); Bonhomme v. Nicholson, 21 Vet.App. 40, 43

(2007) ("The authority of the Court . . . is limited to reviewing the correctness of the Agency's

factual and legal conclusions based on the record before the agency at the time of its decision.");

Byrd v. Nicholson, 19 Vet.App. 388, 391 (2005) ("'Review in the Court shall be on the record of

proceedings before the Secretary and the Board.'" (quoting 38 U.S.C. § 7252(b)); Redding v.

West, 13 Vet.App. 512, 515 (2000) ("The Court is precluded by statute from considering any
 At this point, we need not address whether or how the protections afforded by 38 U.S.C. § 5705 affect the extent to 2

which medical quality assurance records may be discoverable in civil actions brought under the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 1346(b), as such suits are beyond the Court's jurisdiction. See Loving v. Nicholson, 19 Vet.App.

96, 101 (2005) (noting that "'the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the

United States' for certain torts committed by federal employees while acting within the scope of their employment."

(quoting 28 U.S.C. § 1346(b)). Specifically, the Court need not decide whether the privilege rules would be identical

in an FTCA claim, nor are we compelled to address any of the forum-shopping issues implicated by the parties'

arguments.

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material that was not contained in the 'record of proceedings before the Secretary and the

Board.'" (internal citations omitted)). As discussed below, however, it is not clear whether the

Board could have compelled the Secretary to provide the Board with limited access to the

VAMC report.

3. Secretary's Description of the VAMC Report

The appellant's first contention, that the Secretary did not properly comply with his own

regulations by failing to describe, in advance and in writing, the VAMC report as a quality

assurance record, is one that the Board did not address. See R. at 3-4. As the appellant correctly

points out, the Secretary fails, in his brief, to respond to this argument. App. Reply Br. at 3. The

record is also devoid of any document put forth by the Secretary to prove that the VAMC

investigation and report qualify as quality assurance activities. Although this Court has not

addressed whether the regulation in question amounts to a threshold hurdle for the Secretary to

surmount in order to withhold a document, other courts have taken that view. See, e.g., Bethel v.

United States, 242 F.R.D. 580, 585 (D. Colo. 2007) (compelling disclosure of certain documents

after determining that the Secretary had failed to provide any document "which establishes that

the claimed [activity] was 'designated by the reviewing office at the outset of the review' as

privileged, as is required to invoke the protections of 38 U.S.C. § 5705." (quoting 38 C.F.R.

§ 17.501(a)(1)(2)). It seems clear, then, that the Secretary's own regulations require VA to make

some showing as to whether it described, in advance and in writing, the quality assurance

activity for which it seeks "to invoke the protections of 38 U.S.C. § 5705." Bethel, 242 F.R.D. at

585. If the Secretary is not able to make such a showing, then it follows that any such document

is not privileged and must be released to the appellant. 2

Moreover, although the statutory provisions governing quality assurance activities seem

to prohibit the release of properly privileged documents to veterans seeking benefits, it is not

clear to the Court why the Board, as a wholly contained subset of VA, would not be able to
 To ensure fair process, the Board cannot rely on such documents in making a decision on the merits of a veteran's 3

claim unless it first determines that VA may release the documents to the veteran. See Austin v. Brown, 6 Vet.App. 547

(1994); Thurber v. Brown, 5 Vet.App. 119 (1993).

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access the records for its own review if only to determine whether the records are indeed

privileged. See 38 U.S.C. § 5705(b)(5) ("Nothing in this section shall be construed as limiting

the use of [medical quality assurance records] within the Department."); see also Boone v.

Shinseki, 22 Vet.App. 412, 414 (2009) ("[T]he Board is not an independent entity, but is part of

VA . . . . " (citing 38 U.S.C. § 7101)). Accordingly, the Board should consider whether it may

review medical quality assurance records in order to determine if VA should release the

documents to the veteran. In any event, as explained more fully below, this is an issue that the 3

Board should address in the first instance on remand.

C. Remand

On remand, the appellant is free to submit additional evidence and argument, including

the arguments raised in his briefs to this Court, to the extent that they are viable in light of this

decision. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The

Board must consider any such evidence or argument submitted and shall proceed expeditiously,

in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious

treatment" of claims remanded by Board or Court). See also Kay v. Principi, 16 Vet.App. 529,

534 (2002). The Board must also take care to discuss any and all potentially applicable

provisions of law in rendering its decision. See Schafrath v. Derwinski, 1 Vet.App. 589, 593

(1991) (holding that "the Board's refusal to acknowledge and consider [applicable law] is

'arbitrary, capricious, an abuse of discretion,' and 'not in accordance with the law,' and must be

set aside as such.") (internal citations omitted).

The Board should also determine whether the Secretary has complied with the statutory

and regulatory provisions governing the confidentiality of quality assurance activities.

Specifically, the Board should assess whether the Secretary properly described, in advance and

in writing, the nature of the VAMC investigation and report and whether it was intended to be

protected as a quality assurance activity. If necessary, the Board should consider whether it may

access the VAMC report for the purposes of determining the applicability of the confidentiality

protections afforded by 38 U.S.C. § 5705.
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IV. CONCLUSION

After the Court's consideration of the appellant's and the Secretary's briefs, and its review

of the record, the Board's August 10, 2007, decision is VACATED and the matter REMANDED

to the Board for further proceedings consistent with this decision. The appellant's motion to

expedite the appeal is DISMISSED as moot.