Citation Nr: 0004797 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 98-06 291 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from June 1953 to April 1956. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating action in which the RO denied DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151, death pension and accrued benefits. The appellant appealed. The appellant and her daughter appeared and provided testimony at a hearing at the RO before the undersigned member of the Board in April 1999. REMAND The veteran died on August [redacted], 1998, at the age of 62. The death certificate shows that the cause of death was cardiopulmonary arrest, overwhelming pneumonia and chronic obstructive pulmonary disease. An autopsy was not performed. The veteran died at the Long Beach, California VA medical center (VAMC). In pertinent part, 38 U.S.C.A. § 1151, in effect prior to October 1, 1997, provided that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death were service-connected. The provisions of 38 C.F.R. § 3.358(c)(3) (1994), formerly required that in order for compensation to be payable under 38 U.S.C.A. § 1151, there had to be a showing that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA. In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Appeals for Veterans Claims (Court) invalidated the requirement of fault contained in 38 C.F.R. § 3.358(c)(3). The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remained valid. This decision was ultimately affirmed by the United States Supreme Court in Brown v. Gardner, 115 S.Ct. 552 (1994). The provisions of 38 C.F.R. § 3.358, provide, that in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition that the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization, etc., was authorized. 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, it is necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. 38 C.F.R. § 3.358 (b),(c). The amended regulation, 38 C.F.R. § 3.358(c)(3), now provides: Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. The provisions of 38 U.S.C.A. § 1151 were amended effective October 1, 1997, to re-impose the requirement that additional disability be the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1)(A)(B) (West Supp. 1999). Initially, the Board notes that the issue on appeal is complicated by a lack of required evidence in the claims folder, varying dates of alleged surgery and treatment, and conflicting statements as to the nature of the appeal and the benefits claimed thereon, as well as the basis of the basis of the underlying contention by the appellant as to her entitlement to some type of VA benefits. As such, and following a complete review of the claims folder, the Board finds that further development is required before a final decision is made on this appeal. Such action is required before a determination can be made as to whether the appellant's claim is well-grounded. Most of the missing records appear to be VA records. Where documents are within the Secretary's control and could reasonably be expected to be a part of the record before the Secretary and the Board, such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, the appellant has identified records which she asserts, in effect, would make her claim well-grounded. By way of procedural background, the veteran initially filed a claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 in October 1994; no specific disability was identified at that time, but the veteran reported that he was currently hospitalized at the Long Beach California VA Medical Center (VAMC). By later statement dated in May 1995, the veteran cited surgeries claimed to have taken place in June and July 1993 at the VAMC as the basis for his 1151 claim. A search for records of surgeries in June and July 1993 did not confirm any such procedures having been performed on the veteran at those times. The veteran's claim was denied by the RO as not well grounded in a March 1996 rating decision on the basis that the veteran had not presented evidence of additional disability, or even that such surgeries had been performed. In January 1997, the veteran attempted to reopen his claim of entitlement to compensation benefits under 38 U.S.C.A. § 1151; the RO denied this attempt in a May 1997 rating decision. In his August 1997 NOD, the veteran claimed that a report of CT scan taken in April 1992 showed a worsening of his back during a March 1992 hospitalization and surgery at the VAMC [these dates are different and, in fact, pre-date the June and July 1993 dates originally claimed by the veteran to have been the basis of his 1151 claim]. Following the issuance of a statement of the case (SOC), the veteran indicated on his March 1998 substantive appeal to the Board (VA Form 9) that he was appealing "under 1151 for paraplegia." By letter of August 24, 1998, prior to receiving notification of the veteran's death on August [redacted], 1998, the RO requested from the veteran medical records pertaining to his 1991 automobile accident and all subsequent treatment therefor. For obvious reasons, no response was ever received from the veteran. However, at the hearing before the undersigned member of the Board at the RO in April 1999, the appellant and her representative acknowledged that the veteran first became paralyzed following surgery at a private hospital, identified as "Kaiser" in September 1991. The complete hospital clinical records pertaining to this hospitalization have not been obtained for association with the claims folder. At her Board hearing, the appellant testified that the veteran was paralyzed following spinal surgery at a private hospital identified as "Kaiser" in September 1991. The veteran was unable to ambulate following that surgery and basically paralyzed. He was reportedly transferred directly from Kaiser to the Long Beach, California VA Medical Center (VAMC) on October 31, 1991. The appellant was not clear about the exact dates of subsequent hospitalizations, but reported there were many. In addition, she said that the veteran had two additional surgeries on his back which were performed at the VAMC to correct problems which resulted from the September 1991 surgery at the private hospital. The appellant indicated that, even though the veteran was essentially paralyzed in September 1991 following the surgery at the private hospital, his condition worsened following the surgeries conducted at the VAMC in March and June 1992. Specifically, the appellant reported that the veteran developed bowel and bladder problems which had not previously existed, he experienced difficulty breathing, had increased pain and weakness, and was no longer able to transfer unassisted from his wheelchair to the bed. The veteran's daughter testified that the veteran's condition just kept getting worse and worse following his surgeries. The veteran's representative indicated that there were 16 volumes of outstanding VA medical records from the Long Beach, California VAMC which had not been obtained for association with the claims folder. Some of these medical records were reported to be unrelated to the pending issue on appeal as the veteran had been followed at that VAMC since 1965 for a service-connected disability characterized as residuals of an inguinal hernia. Of interest in the pending appeal are all VA records (both in-patient hospitalizations and outpatient treatment records) dated from October 31, 1991, the date that the veteran was transferred from the private hospital to the Long Beach, California VAMC, up to the time of his death in August 1998. As regards the copies of VA clinical records which are currently in the claims folder, they are demonstrably incomplete. They have also been added to the claims folder in such a disorderly fashion as to make a systematic review of the records exceptionally difficult. This includes difficulty in distinguishing VA hospital clinical records from pertinent VA outpatient treatment records, to the extent that any of these records are in the claims folder for the time periods at issue in the pending appeal. At the April 1999 hearing, the record was held open for sixty days following the hearing so that the appellant and/or her representative could submit evidence; no additional evidence has been submitted since the date of the hearing. Remand is warranted to obtain and associate the complete hospital clinical records pertaining to both the September 1991 surgery at the private hospital, as well as the reported March and June 1992 surgeries on the veteran's back at the VAMC in Long Beach, California. See Jolley v. Derwinski, 1 Vet. App. 37, 40 (1990); Robinette v. Brown, 8 Vet.App. 69 (1995). The Board notes that at the time of the veteran's death in August 1998, he had a claim pending for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151. The September 1998 rating action denied entitlement to accrued benefits. In the September 1998 notice of disagreement (NOD), the veteran's representative also disagreed with the denial of accrued benefits under 38 U.S.C.A. § 1151. The Board construes that document to be a valid NOD to the denial of accrued benefits. See 38 C.F.R. § 20.201 (1999). The appellant was not issued a statement of the case (SOC) on this issue. As such, the RO is now required to send the appellant a SOC on the issue of entitlement to accrued benefits under 38 U.S.C.A. § 1151 in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that where a NOD has been submitted, the appellant is entitled to a SOC. The failure to issue a SOC is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). Accordingly, this case is REMANDED for the following action: 1. The RO should contact the Long Beach, California VAMC and obtain the complete VA hospital clinical records for all periods of hospitalization, to include the hospitalization in October 1991 when the veteran was transferred from the Kaiser Hospital directly to the Long Beach, California VAMC, and the hospitalizations during which surgery was performed on the veteran in March 1992 and June 1992. The RO should also obtain the all of the veteran's outpatient treatment records reflecting treatment between at any time after October 1991. The RO is referred to the April 1999 hearing testimony which reflects that these records are substantial and may be contained in as many as sixteen volumes. All records should be associated with the claims folder. 2. The RO should contact the appellant and ascertain the complete name and address of the Kaiser Hospital wherein the veteran underwent spinal surgery in September 1991. Thereafter, the RO should contact that Kaiser Hospital facility and obtain a complete copy of all of the veteran's medical records pertaining to the hospitalization and surgery at that facility from the date of his admission on August 21, 1991, to the date that he was transferred to the Long Beach, California VAMC on October 31, 1991. All records obtained should be associated with the claims folder. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The RO should then review the evidence in its entirety and determine whether the appellant's claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is well- grounded. In the event that it is, any other development deemed necessary should be undertaken before further adjudication of this issue is undertaken. 4. If the determination remains adverse to the appellant, both the appellant and her representative should be provided with a supplemental statement of the case, which summarizes the newly received evidence and provides a complete explanation of the decision reached, and be given the opportunity to respond within the applicable time. 5. With respect to the other issue raised by the appellant, entitlement to accrued benefits based on the veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151, the RO should provide the appellant and her representative with an SOC, in accordance with the provisions of 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.29, 19.30. If and only if the appellant perfects her appeal by submitting a timely and adequate substantive appeal, then the RO should return this issue to the Board for appellate consideration. The appellant need take no action unless otherwise notified, but she has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain clarifying data and to ensure due process of law. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for further development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. N.R. ROBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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) (1999).