BVA9508335 DOCKET NO. 90-50 897 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. 1151. REPRESENTATION Appellant represented by: Patrick T. Tierney, Attorney at Law ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active military service from January 1952 to April 1954. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal was developed for appellate review and in November 1991 the Board entered a decision denying claims for dependency and indemnity compensation benefits pursuant to the provisions of 38 U.S.C.A. 1151 and for service connection for an acquired psychiatric disorder. The appellant appealed that part of the decision denying entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 to the United States Court of Veterans Appeals (the Veterans Court). The Veterans Court, in [citation redacted], vacated the November 1991 Board decision with respect to the 38 U.S.C.A. § 1151 issue and remanded the case to the Board for further development. The Court's action was based on a motion by the appellee, the Office of the General Counsel of the VA on behalf of the Secretary. The motion, while recognizing that the Board's 1151 decision was rendered prior to Gardner v. Derwinski, 1 Vet.App. 584, 588 (1991), noted that its decision rested, in part, on the fault provision of 38 C.F.R. § 3.358, which had been overturned by Gardner. In the remand below, the Board, is undertaking the court-mandated development. In Gardner, the Veterans Court held that 38 C.F.R. § 3.358(c)(3) was unlawful as exceeding the authority of the Secretary of Veterans Affairs (Secretary) and in violation of the statutory rights granted to veterans by Congress under 38 U.S.C.A. § 1151. Pursuant to a suggestion in the Veterans Court's opinion in Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991), VA instituted a department-wide policy of holding in abeyance certain cases which were likely to fall within the precedent of Gardner. The U.S. Court of Appeals for the Federal circuit subsequently affirmed the Veterans Court's decision. See Gardner v. Brown, 5 F. 3d 1456 (Fed. Cir. 1993). On December 12, 1994, the Supreme Court decided Brown v. Gardner, 115 S. Ct. 552 (1994). Specifically, the Supreme Court held that VA is not authorized by 38 U.S.C.A. § 1151 to exclude from compensation the "contemplated or foreseeable" results of non- negligent medical treatment, as provided by 38 C.F.R. § 3.358(c)(3). Subsequent to the Supreme Court decision, the VA has issued new regulatory criteria at 38 C.F.R. § 3.358(c)(3) which implement the holding in Gardner. The case at hand was one held in abeyance because of the questions raised by Gardner, but these questions have been resolved and the case is now ready for further appellate review. REMAND As noted above, the basis for appellee's motion for remand was that the Board's decision was based, in part, on application of the fault provisions of 38 C.F.R. § 3.358(c)(3), which in Gardner was held to be unlawful as exceeding the authority of the Secretary and in violation of the statutory right granted to veterans by Congress in Section 1151. In order to accomplish the development mandated by the Veterans Court in this case, additional development of the evidence must be undertaken and the proper regulatory criteria must be applied. In this regard, we note that at the time of the prior Board decision, the complete hospital clinical records and VA outpatient treatment records or copies thereof covering the critical period from May 1987 to July 1989 were associated with the claims folder. These records which represented the best evidence of the veteran's treatment by the VA from 1987 to 1989 are no longer associated with the claims folder. Also, the prior denial was based, in part, on the absence of VA fault; however, fault is no longer for consideration and the case must be re- reviewed by the RO in that light. Furthermore, as there is a change in the legal criteria for adjudicating this claim, the appellant must be provided full notice and have the opportunity for this case to be heard at the RO in light of the new criteria, so that prejudice does not result. Bernard v. Brown, 4 Vet.App. 384 (1993). In view of the foregoing and in order to accomplish the Veterans Court's directives in [citation redacted], the case is REMANDED for the following actions: 1. The RO should obtain, and associate with the claims folder, the complete original clinical records or copies thereof pertaining to all treatment (including hospitalization), provided to the veteran by the VA during the period from May 1, 1987, to July 1989. The hospital records should include the reports for all procedures which were conducted during the time, all progress and nurses' notes, and reports of any consultations. The reports of all outpatient treatment for the same time period should also be obtained and associated with the record. 2. When the above is accomplished, the claims folder, to include all the hospital and outpatient treatment records obtained, should be forwarded to an appropriate VA specialist (who had not previously examined or treated the veteran) for review of the VA's treatment of the veteran from May 1987 to July 1989. In light of the medical record and the appellant's contention that the VA should have diagnosed the veteran's terminal condition in 1987, rather than in 1989, the examiner should provide an opinion on the following: Did the veteran's death-causing metastatic disease of the lungs (or arteriosclerotic cardiovascular disease, which was a contributing cause of death) result, or advance beyond natural progress, from any treatment (including failure to diagnose or treat) by the VA. The reviewing physician should provide the complete rationale for any opinion given. If these matters cannot be medically determined without resort to mere conjecture, it should be so noted. When the above action has been completed, the RO should review the development to ensure that it was completed. Then the RO should readjudicate the claim in light of the recent changes to 38 C.F.R. 3.158(c)(3) and the development requested above. If the claim remains denied, the appellant and her representative should be furnished a supplemental statement of the case covering the new evidence and citing the new 38 C.F.R. § 3.158(c)(3). After the appellant and her representative have had adequate opportunity to respond, the case should be returned to the Board for further appellate review. The purposes of this REMAND are to obtain clarifying data and to provide the appellant due process of law. GEORGE R. SENYK 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).