BVA9508340 DOCKET NO. 89-03 486 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to dependency and indemnity compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (formerly § 351). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and two sons INTRODUCTION This case came before the Board of Veterans Appeals (Board) on appeal of a rating decision of the Boston, Massachusetts Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran's military service extended from June 1952 to June 1955 and from February 1959 to October 1959. The Board of Veterans Appeals remanded the case in August 1989 for further evidentiary development, as well as for clarification as to whether the issue of entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 had been raised in a proper context. Ultimately, at a hearing before the Board in January 1991, it was clarified that the so called 1151 claim revolved around lithium dosages, which were prescribed for the veteran's service-connected psychosis. As such, the Board determined that the contentions concerning lithium dosages should be addressed in connection with the issue of entitlement to service connection for cause of death. At the conclusion of the hearing, the Board was of the opinion that the 1151 issue had not been raised. However, later on that day (January 31, 1991), the appellant's representative filed an informal hearing memorandum which raised a different (valid) issue involving entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151. Thereafter, in March 1991, the Board entered a decision denying entitlement to service connection for cause of death and remanding the current issue (as articulated in the January 31, 1991 informal hearing memorandum) to the RO for initial adjudication. In September 1991, the RO furnished the appellant a statement of the case (designated as a supplemental statement of the case) covering the issue of entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151. 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 claims folder was returned to the RO in March 1992 pursuant to a Department wide stay of consideration of claims for benefits under 38 U.S.C.A. § 1151, which were affected by the Gardner decision. This stay having been lifted, the case is once again before the Board for further consideration. REMAND The pertinent provisions of 38 U.S.C.A. § 1151 (West 1991) (formerly § 351) have not changed since the Board's decision in March 1991. The provisions of 38 C.F.R. § 3.358(c)(3) (1994) have been amended to read as follows: 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. 60 Fed. Reg. 14222 (1995). In this case, the veteran died in October 1986 due to chronic cardiovascular renal disease, including essential hypertension, and diabetes mellitus. All of this pathology represents non- service-connected disorders. The contentions in support of the current appeal are that the dialysis accorded the veteran by the VA was not complete, in that it did not filter all of the various medications from his blood. The judicial decisions cited above and the amendment of the provisions of 38 C.F.R. § 3.358(c)(3) require complete readjudication of the issue now on appeal, commencing with the RO. The case is remanded for the following action: 1. All volumes of the claims folder including the associated medical records should be referred to a VA specialist in internal medicine for review and an expression of opinion in answer to the following questions: (a) Did the dialysis accorded the veteran by the VA during his lifetime directly result in his death; (b) Did the dialysis accorded the veteran by the VA during his lifetime result in an increase in severity of any of the disease entities causing death, to wit: chronic cardiovascular renal disease, including essential hypertension, and diabetes mellitus. 2. Following completion of foregoing, the rating board must review the medical opinion and ensure that all of the questions have been responded to. If the medical opinion is incomplete, appropriate corrective action is to be implemented. If the medical opinion is complete, the issue involving entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 should be completely readjudicated by the RO, based on the amended Federal Register provisions to be Codified at 38 C.F.R. § 3.358(c)(3). If the benefit appealed for is not granted, the appellant and her representative should be furnished a supplemental statement of the case and afforded a reasonable time to reply thereto. Thereafter, the case should be returned to the Board for further consideration, if in order. No action is required of the appellant unless notified. The purpose of this remand is to comply with the above noted judicial decisions, and to ensure due process of law in view of the regulatory amendment. 38 C.F.R. § 3.358 (1994) as amended, Compensation for Disability Resulting from Hospitalization, Treatment, Examination, or Vocational Rehabilitation, 60 Fed. Reg. 14222 (1995) (to be codified at 38 C.F.R. § 3.358(c)(3)). 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. 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).