Veteranclaims’s Blog

January 27, 2018

Single Judge Application; doctors’ orders and flow sheets; Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009);

Excerpt from decision below:

“Contrary to the Secretary’s assertion, however, the doctors’ orders and flow sheets potentially are relevant because, on their face, the records pertain to Mr. Forey and his course of VA hospitalization and medical care. See Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (medical records not categorically irrelevant merely because they predate the period on appeal; Board’s duty to assist includes obtaining evidence that is potentially relevant on its face).
VA therefore should have sought to obtain them. See id; see also Stegall, 11 Vet.App. at 271.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1200
ORALIA FOREY, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Chief Judge: Oralia Forey, surviving spouse of U.S. Army veteran Juan Forey,
appeals through counsel a December 8, 2015, Board of Veterans’ Appeals (Board) decision that denied dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151, claimed as due to VA negligence or lack of proper care in providing hospital and medical care in February 2006.
The parties have neither requested oral argument nor identified issues that they believe require a precedential decision of the Court. For the following reasons, the Court will set aside the Board’s December 2015 decision and remand the matter for further proceedings.

I. ANALYSIS
Mrs. Forey argues that the Board erred in finding substantial compliance with the terms of an April 2012 Board remand order that directed VA to obtain the complete set of medical records associated with her husband’s VA hospitalization. A remand order by the Board or the Court imposes on the Secretary a duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet.App. 268, 271 (1998). But see Dyment v. West, 13 Vet.App. 141, 146-47 (1999)(no Stegall violation when the examiner “substantially complied with the Board’s remand order”).
Substantial compliance with the terms of a remand is shown when the Secretary’s actions “resolve
2
the issue that required the remand order.” D’Aries v. Peake, 22 Vet.App. 97, 105 (2008); Dyment, 13 Vet.App. at 146-47.
Here, the Board found that “VA fulfilled its duty to assist the appellant by obtaining all relevant evidence in support of this claim that is obtainable,” and that “[a]ny deficiency in the compliance with the Board’s prior remand directives has been cured.” Record (R.) at 7. The record, however, indicates that relevant medical records remain outstanding and have not been obtained by VA. Specifically, the record includes nurses’ notes that refer to doctors’ orders and intensive care flow sheets for Mr. Forey that are not included in the record on appeal. See R. at 2414, 2415, 2438, 2446. The record also does not show that VA obtained the complete medication records and logs from Mr. Forey’s VA hospitalization.
The Secretary does not assert that the record includes the doctors’ orders or flow sheets.
Rather, the Secretary argues that any error in failing to obtain these documents was not prejudicial because the doctor’s records and flow sheets would not contain any information not already included in the record.1 Contrary to the Secretary’s assertion, however, the doctors’ orders and flow sheets potentially are relevant because, on their face, the records pertain to Mr. Forey and his course of VA hospitalization and medical care. See Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (medical records not categorically irrelevant merely because they predate the period on appeal; Board’s duty to assist includes obtaining evidence that is potentially relevant on its face). VA therefore should have sought to obtain them. See id; see also Stegall, 11 Vet.App. at 271.
Although the Secretary contends that the matter of negligence in VA’s treatment of Mr. Forey’s small bowel obstruction and renal functioning was not reasonably raised by the record, the Board itself found that an inquiry based solely on the seizure medication is “too narrowly focused” because this case “involves the broader question of whether VA[‘s] lack of proper care [or] negligence caused [Mr. Forey’s] death.” R. at 282. The Board’s characterization is supported by the record. The scope of the inquiry was not limited by the parties’ 2015 joint motion for remand. See R. at 2406-10.
1 The Court notes that the Secretary has appended to his brief a document that is titled “Flowsheet Documentation Guideline.” This document generally appears to be a set of examples of how nurses have filled in information on intensive care flowsheets. It does not include any information specific to Mr. Forey. The Secretary
does not contend that this document was in the record before the Board, and the Court declines to take judicial notice of its contents or accept the Secretary’s otherwise unsupported assertion that the doctors’ orders and flowsheets in this
case would not include any information not already included in the record before the Board.
3
With respect to the medication logs, the Secretary does not contest Mrs. Forey’s assertion that VA did not obtain these records. Instead, the Secretary argues that any failure to obtain the logs is nonprejudicial because Mrs. Forey herself submitted her husband’s medication logs to VA as part of her DIC claim. There is no indication in the record, however, that Mrs. Forey’s submission constitutes the complete list of Mr. Forey’s medications, nor does the record indicate that Mrs. Forey is in a position to know the complete set of medications that the VA hospital
administered to her husband. Without VA’s submitting the medication logs, it is not clear whether the log that Mrs. Forey submitted constitutes the entire medication log or is only a portion of the medication logs that are available. Remand is warranted for the Board to ensure compliance with the terms of the 2012 Board remand. See Stegall, 11 Vet.App. at 271.
In light of the need to remand for the Board to address the duty to assist, the Court need not address Mrs. Forey’s additional arguments regarding the duty to assist and the adequacy of the Board’s statement of reasons or bases. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). However, the
Court notes that, in pursuing her claim on remand, Mrs. Forey will be free to submit additional argument and evidence as to the remanded matter, and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

II. CONCLUSION
On consideration of the foregoing, the Board’s December 8, 2015, decision is SET ASIDE
and the matter is REMANDED for further proceedings consistent with this decision.
DATED: January 26, 2018
Copies to:
Michael T. Rapp, Esq.
VA General Counsel (027)

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