BVA9508116 
DOCKET NO.  90-01 818     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Wichita, Kansas

THE ISSUE

Entitlement to compensation benefits pursuant to the provisions
of 38 U.S.C.A.
§  1151 (formerly § 351) for additional disability resulting in a
left below-the-knee- amputation, based on treatment rendered at a
Department of Veterans Affairs facility in February-March 1989.

REPRESENTATION

Appellant represented by: Michael L. Hodges, Attorney At
Law

INTRODUCTION

The veteran had active military service from September 1942 to
November 1945.  This matter initially came before the Board of
Veterans Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
November 1989.

The case was remanded by the Board for further development in
July 1990.  In April 1991, the Board entered a decision, denying
the appeal.

Subsequently, the veteran appealed the Board's April 1991
decision to the United States Court of Veterans Appeals (Court).
In November 1991, in another case, the Court invalidated 38
C.F.R. § 3.358(c)(3), on which the Board based its decision, and
remanded the case to the Board for further proceedings.  Gardner
v. Derwinski, 1 Vet.App. 584 (1991).  The Court's decision was
affirmed by the United States Court of Appeals for the Federal
Circuit (Court of Appeals) in Gardner v. Brown, 5 F. 3rd 1456
(Fed. Cir. 1993), and subsequently appealed to the United States
Supreme Court (Supreme Court).

On December 12, 1994, the Supreme Court issued its decision in
Gardner, affirming the decisions of the Court and the Court of
Appeals.  Brown v. Gardner, _ U.S. _, 115 S. Ct. 552 (1994).
Thereafter, the Secretary of the VA (Secretary) sought an opinion
from the Attorney General of the United States as to the full
extent to which benefits were authorized under the Supreme
Court's decision.  On March 16, 1995, amended regulations were
published deleting the fault or accident requirement of
38 C.F.R. § 3.358, in order to conform the regulations to the
Supreme Court's decision.

As regards the appeal in this case, the Office of the General
Counsel of the VA, representing the Secretary of Veterans
Affairs, filed a motion to remand the case to the Board in June
1992, because this appeal was affected by the Court's
November 1991 decision in Gardner.  The Court ordered that this
case be remanded to the Board on July 13, 1992.  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.

CONTENTIONS OF APPELLANT ON APPEAL

It had been contended on appeal that the Department of Veterans
Affairs' initial treatment of the veteran's gangrenous toe
resulted in subsequent amputations, ending with a below-the-knee
amputation.  It is contended that if the initial treatment had
been properly done then there would have been no need for any
amputation beyond the veteran's toe.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on the recent death of the veteran, the claim is dismissed.

FINDINGS OF FACT

While the veteran's claim was in appellate status before the
Board, he died on January [redacted] 1995.

CONCLUSION OF LAW

The veteran's appeal for entitlement to compensation benefits
pursuant to the provisions of 38 U.S.C.A. § 1151, for additional
disability, resulting in a left below the knee amputation, based
on treatment rendered at a VA medical facility in February and
March 1989, is dismissed.  38 U.S.C.A. § 1151 (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

While the claim was in appellate status before the Board, the
veteran died on January [redacted] 1995.  The Court has held that
veterans claims for disability compensation under chapter 11 of
title 38 of the United States Code annotated do not survive their
deaths.  VDA de Landicho v. Brown, 7 Vet.App. 42 (1994).  A claim
for compensation benefits pursuant to the provisions of 38
U.S.C.A. § 1151 (West 1991) falls under Chapter 11 of 38 U.S.C.A.

The basic entitlement to disability compensation under this claim
was solely for the veteran's benefit.  The Board has noted that
the death certificate revealed that the veteran was married at
the time of his death and was survived by his spouse.  A
surviving spouse is a qualified survivor to carry on, to the
limited extent provided for by law, a deceased veteran's claim
for VA benefits, by submitting an application for accrued
benefits within one year after the veteran's death.  38 U.S.C.A.
§ 5121(a), (c) (West 1991).  No such claim is of record at the
current time.

ORDER

Entitlement to compensation benefits pursuant to the provisions
of 38 U.S.C.A. § 1151 for additional disability resulting in a
left below the knee amputation, based on treatment rendered at a
Department of Veterans Affairs facility in February and March
1989 is dismissed.

          BRUCE E. HYMAN
          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.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.