BVA9508113 DOCKET NO. 91-40 224 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 (West 1991) for additional disability resulting from treatment provided by a VA medical facility from April 19 to May 5, 1985. 2. Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 (West 1991) for additional disability resulting from treatment provided by a VA medical facility on March 10, 1987. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant is the widow of a deceased World War II veteran who served on active duty from June 1943 to November 1945 and who died in May 1988. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating determination by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In an appellate decision dated in April 1993, the Board denied the appellant's claim seeking service connection for the cause of the veteran's death. Subsequently, the case was appealed to the United States Court of Veterans Appeals (Court). In April 1994, VA filed a Motion for Remand in which it was argued that the appellant was entitled to a second personal hearing before a Member of the Board since the Board Member before whom she had appeared in April 1992 had retired and did not participate in the April 1993 decision of the Board. It was also argued in that Motion for Remand that the appellant had raised a claim seeking benefits under 38 U.S.C.A. § 1151 (West 1991) which VA had failed to adjudicate. It was further noted that the appellant had reviewed the Motion to Remand and did not oppose it. In an Order dated in April 1994, the Court granted the unopposed Motion to Remand, and remanded the case for compliance with the instructions contained in that motion. Copies of the Court's Order and of the unopposed Motion to Remand have been incorporated into the claims file. A hearing was held before the undersigned Member of the Board in October 1994 at which the appellant and her daughter appeared and explained her contentions. A transcript of that hearing is of record. In an appellate decision dated in November 1994, the Board again denied the appellant's claim seeking service connection for the cause of the veteran's death. In that decision, it was also noted that the additional claim for benefits under 38 U.S.C.A. § 1151 would be placed in abeyance pending resolution of VA's appeal in the case of Gardner v. Derwinski, 1 Vet.App. 584 (1991), in which the Court invalidated 38 C.F.R. § 3.358(c)(3) which had previously governed the adjudication of claims under 38 U.S.C.A. § 1151. On December 12, 1994, the Supreme Court of the United States (Supreme Court) issued its decision in Brown v. Gardner,_U.S._, 115 S.Ct. 552 (1994), affirming the earlier decisions of the Court and the United States Court of Appeals for the Federal Circuit. On March 16, 1995, amended regulations were published deleting the fault or accident requirements of 38 C.F.R. § 3.358(c)(3), in order to conform the controlling regulation to the Supreme Court's decision. The Board's stay on the adjudication of claims affected by the Gardner decision having been lifted, this case is now before the Board for further consideration. The appellant and her representative were notified of this fact by letter dated in March 1995 and given the opportunity to submit additional evidence or argument in support of the claim. An Informal Hearing Presentation by the representative was received later in March 1995. In a written argument submitted at the October 1994 hearing, the appellant raised the additional issue of her entitlement to the payment of unauthorized private medical expenses incurred in connection with the veteran's treatment at a private medical facility beginning on May 5, 1985. Since the ultimate outcome of this claim under 38 U.S.C.A. § 1728 (West 1991) may well depend upon the outcome of the present claim under 38 U.S.C.A. § 1151, this matter will be deferred for the present time. REMAND Where it is determined that there is additional disability or the death of a veteran resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, or examination by VA, compensation, death compensation, or dependency and indemnity compensation (DIC) benefits "shall be awarded in the same manner as if such disability, aggravation, or death were service-connected." 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(a) (1994). In determining that additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. 38 C.F.R. § 3.358(b)(1). However, benefits will not be payable under 38 U.S.C.A. § 1151 for the continuance or natural progress of disease or injuries for which the hospitalization, medical or surgical treatment, or examination, was authorized. 38 C.F.R. § 3.358(b)(2). In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, or examination, it will be necessary to show that the additional disability is actually the result of such disease or injury or aggravation of an existing disease or injury and not merely coincidental therewith; and the mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c). The appellant has contended that her husband was wrongfully denied treatment by VA on both April 19, 1985, at the Reno, Nevada VA Hospital (VAH) and again on March 10, 1987, by the Palo Alto, California, VAH. However, an examination of the relevant medical records contained within the claims file indicates that the veteran was accepted for treatment and received treatment by VA from April 19 to May 5, 1985, and again on March 10, 1987. Accordingly, the appellant's claim falls within the parameters of 38 U.S.C.A. § 1151. As this claim has not yet been developed or adjudicated by VA, it is necessary to remand this case to the RO for the following further actions: 1. The RO should ensure that the complete, original (if possible) VA medical records pertaining to treatment accorded to the veteran by VA are associated with the claims file for the duration of this claim. In particular, the RO should ensure that the complete, original (if possible) VA outpatient treatment records pertaining to the treatment accorded to the veteran from April 19 to May 5, 1985, and again on March 10, 1987, are of record. 2. After obtaining any necessary releases from the appellant, the RO should also take all steps necessary to ensure that the complete clinical records pertaining to treatment received by the veteran at Seneca District Hospital, Chester, California, from May 5 to June 7, 1985, and again in approximately May or June 1987 are contained within the claims file. 3. In accordance with the Court's directive, the RO should next make appropriate efforts to assist the appellant in articulating her claim for benefits under 38 U.S.C.A. § 1151 in accordance with 38 U.S.C.A. § 7722(d) (West 1991); 38 C.F.R. § 3.159 (1994). In particular the appellant should be advised that the focus of claims under 38 U.S.C.A. § 1151 is to determine whether additional disability to a beneficiary resulted from treatment provided by VA, and that peripheral considerations such as fault, negligence, or accident have been removed from such determinations by the Supreme Court. The appellant should also be requested to clarify her repeated references to the veteran's alleged entitlement to "priority treatment" on March 10, 1987, under Public Law 97-72, as the Board has been unable to find any such language in that statute. The appellant and her representative should also be accorded the opportunity to submit additional evidence or argument in support of her claim. 4. The complete record in this case, including the claims file and any associated VA medical records and a complete copy of this remand decision, should then be referred to a VA oncologist (board certified, if available) for review and an expression of opinion in answer to the following questions: (a) Is it more likely than not that the treatment accorded the veteran by VA from April 19 to May 5, 1985, resulted in additional disability to the veteran caused by an injury, disease, or aggravation of an existing disease or injury, but not by the continuance or natural progress of the disease for which treatment was authorized? (2) If so, did that additional disability cause or contribute significantly to the veteran's death? (3) Is it more likely than not that the treatment accorded the veteran by VA on March 10, 1987, resulted in additional disability to the veteran caused by an injury, disease, or aggravation of an existing disease or injury, but not by the continuance or natural progress of the disease for which treatment was authorized? and (4) If so, did such additional disability cause or contribute significantly to the veteran's death? 5. Following the completion of the foregoing, the RO must review the record and ensure that all of the foregoing development has been completed in full. If any development is incomplete, or if the requested medical opinion does not include all necessary information, appropriate corrective action is to be implemented. At this point, the RO must determine if the appellant has submitted a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991); if so, the RO must assist the appellant in developing any additional facts pertinent to the claim, as required by 38 U.S.C.A. § 5107(b) (West 1991). 6. After the development requested above has been completed to the extent possible, the RO should adjudicate the appellant's claim for accrued benefits or DIC benefits under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.358 as amended at 60 Fed. Reg. 14,223 (1995). This decision by the RO should provide adequate reasons and bases for its determinations, and it should contain an analysis of the credibility or probative value of the evidence submitted on behalf of the appellant. Any medical conclusions reached by the RO must be supported by independent medical evidence. 7. If the claim is dismissed as not well- grounded, or if the benefits sought by the appellant pursuant to 38 U.S.C.A. § 1151 are not fully granted, the appellant should be informed in writing of the RO's reasons and bases for such unfavorable action(s) and of her appellate rights with respect to those unfavorable determinations and the procedures for filing and perfecting an appeal. If a timely Notice of Disagreement is received from the appellant, a Statement of the Case should be prepared and issued to the appellant and her representative. The requirements for perfecting an appeal to the Board should again be explained to them. If an appeal to the Board is perfected in a timely manner, the case should be returned to the Board, in accordance with proper appellate procedures, for appellate review, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until she is otherwise notified by the RO. SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).