BVA9507299 DOCKET NO. 90-52 863 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether the evidence is new and material to reopen the claim of entitlement to disability compensation under 38 U.S.C.A. § 1151 (West 1991) (formerly § 351) for additional right hip disability, resulting from VA surgical treatment in July 1978. REPRESENTATION Appellant represented by: Rob F. Gardner, III, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The veteran had active naval service from August 1943 to April 1946. In a November 1984 decision, the Board of Veterans' Appeals (Board) denied the veteran's initial claim of entitlement to disability compensation under 38 U.S.C.A. § 1151 (formerly § 351) for additional right hip disability, resulting from VA surgical treatment in July 1978. The Board held that accident or fault on the part of VA was not shown, applying 38 U.S.C. § 351 and 38 C.F.R. § 3.358(c)(3) (1984). In November 1989, the veteran applied to reopen his claim for benefits under 38 U.S.C.A. § 1151 (formerly § 351) on the basis of new and material evidence. The claim was reviewed on appeal by the Board in July 1991. In its decision, the Board found the evidence insufficient to reopen the claim. The veteran then appealed the Board's decision to the United States Court of Veterans Appeals (Court). In a February 1992 order, the Court vacated the Board's decision and granted a joint motion for remand to consider the veteran's claim in light of the Court's holding in Gardner v. Derwinski, 1 Vet.App. 584 (1991) (holding that 38 C.F.R. § 3.358(c)(3) was unlawful because it provided that compensation would not be payable for injury or aggravation of injury the result of medical treatment by VA unless there was some showing of fault on the part of VA, which was contrary to the statutory authority, 38 U.S.C.A. § 1151). Pursuant to a suggestion in the Court's opinion in Tobler v. Derwinski, 2 Vet.App. 8,12 (1991), VA instituted a Department- wide stay on those cases that were likely to fall within the precedent of Gardner. As a result the veteran's case (initially decided in 1984 under 38 C.F.R. § 3.358(c)(3)) was placed in abeyance pending VA's appeals to the United States Court of Appeals for the Federal Circuit, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993) and to the United States Supreme Court, Brown v. Gardner, _ U.S._, 115 S.Ct. 552 (1994). On each appeal, the decision of the Court was affirmed. In March 1994, the veteran died while his case was in abeyance. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that a dismissal of the issue on appeal is appropriate. FINDING OF FACT The veteran's claim of whether the evidence was new and material to reopen the claim of entitlement to disability compensation under 38 U.S.C.A. § 1151 (West 1991) (formerly § 351) for additional right hip disability, resulting from VA surgical treatment, was pending appeal when he died in March 1994 and the claim does not survive his death. CONCLUSION OF LAW The appeal is terminated because of the lack of entitlement under the law. 38 U.S.C.A. § 7104(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Analysis The veteran died in March 1984 while his claim was on appeal to the Board. The claim was being held in abeyance pending VA's appeal of Gardner v. Derwinski, 1 Vet.App. 584 (1991) (invalidating 38 C.F.R. § 3.358(c)(3)) as the veteran's claim was likely to fall within the precedent of Gardner. The appeal of Gardner ended in a December 1994 decision by United States Supreme Court, affirming the Court's decision that the regulation, 38 C.F.R. § 3.358(c)(3), was invalid as contrary to the statutory authority, 38 U.S.C.A. § 1151, as it limited compensation to injuries resulting from VA fault or accident during treatment. Brown v. Gardner, _ U.S._, 115 S.Ct. 552 (1994). In Vda de Landicho v. Brown, 7 Vet.App. 42, 47 (1994), the Court held that veterans' claims for disability compensation under chapter 11 of title 38 of the United States Code [including § 1151 claims] do not survive their deaths. In reaching this decision, the Board expresses no opinion as to any derivative right, such as entitlement to accrued benefits pursuant to 38 U.S.C.A. § 5121, that any survivor may have. In this regard, the Board is aware that Terry E. Morrison, the personal representative of the veteran's estate, has retained Rob F. Gardner, III, Esquire, to assist him in pursuing any potential benefits. As to the potential claim of accrued benefits under 38 U.S.C.A § 1151, in March 1995, VA published an interim final rule, amending 38 C.F.R. § 3.358(c)(3), to reflect the United States Supreme Court's holding in Brown v. Gardner, eliminating VA fault or accident as a condition for compensation. 60 Fed. Reg. 14, 222-23 (1995) (to be codified at 38 C.F.R. § 3.358(c)(3)). Also, the change in regulation after the finally denied claim supplants the need for new and material evidence to reopen the § 1151 claim. See Spencer v. Brown, 4 Vet.App. 283, 288-89 (1993). ORDER The appeal is dismissed. THOMAS J. DANNAHER 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.