Citation Nr: 0007501 Decision Date: 01/31/00 Archive Date: 09/08/00 DOCKET NO. 98-08 139 DATE JAN 31, 2000 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. 1151 (West 1991 & Supp. 1999) based on treatment at a VA medical facility in September 1981. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from March 1944 to December 1945. Entitlement to benefits under the provisions of 38 U.S.C.A. 1151 (formerly 38 U.S.C.A. 351) was denied in a decision of the Board of Veterans' Appeals (Board) dated in March 1987. That decision was premised in part on a finding that the veteran did not experience an injury or aggravation of an injury as a result of VA hospitalization in September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the VARO in Los Angeles, which provided the veteran with a de novo review of the claims file and determined that entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. 1151 for herniated nucleus pulposus, status post L2-3, L3-4 and L4-5 laminectomy, was denied on the basis that the evidence failed to show that the back disability had worsened as a result of treatment accorded the veteran by VA. The Board does not have jurisdiction to consider the merits of a finally disallowed claim unless it determines that new and material evidence has been submitted. The Board must make an independent determination on this question independent of any determinations made by the RO. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). REMAND A review of the evidence of record discloses that on September 13, 1981, the veteran was hospitalized at the VA Medical Center in Houston, Texas. On September 18, the veteran underwent a laminotomy at the L2-3, L3-4, and L4-5 levels. Intraoperative findings included intact L2-3, L3-4, and L4-5 discs with no free fragments apparent in the canal. There was a question of hematoma in the right gutter, in the region of the L3-4 interspace. Also, foraminotomy was - 2 - performed at the right L5 foramina. The veteran tolerated the procedure well and awoke stating that his pain had resolved. The remainder of hospital course was uncomplicated with fluctuating complaints of pain in the right posterior thigh and back. There was notation on September 21, 1981, that he had fallen to the floor on his right leg while attempting to transfer himself from a wheelchair to his bed. Notation was made that there was no apparent injury. A physician was present at the time and examined him. In the hospital summary sheet reflecting discharge on September 24, 1981, it was indicated the veteran's main complaints had largely resolved through convalescence, and he was currently ambulating without difficulty around the ward. He was to be followed on an outpatient basis with the next appointment 10 days after discharge. The final diagnosis was right L5 radiculopathy. Evidence of record reveals that the veteran received $25,000 under the provisions of the Federal Tort Claims Act from the Office of the District Counsel, at the VARO in Houston, in April 1985. The rationale for the legal Tort grant is not of record. The Board notes that subsequent to the Boards 1987 decision, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"') has held that Under Bell v. Derwinski, 2 Vet. App. 611 (1992), VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees,, including VA physicians. Id. at 612-13. If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). Records of a torts claim settlement by VA District Counsel are constructively before VA adjudicators. See Moffitt v. Brown, 10 Vet. App. 214 (1997) Records considered by the VA District Counsel could potentially be so significant that they would need to be considered in order to fairly adjudicate the veteran!s claim, and thus constitute new and material evidence. See 38 C.F.R. 3.156 (1999). - 3 - In view of the foregoing this claim is REMANDED for the following: The RO should take all necessary steps to obtain all records pertaining to the veteran's tort claim based on VA hospitalization in September 1981, under the Federal Tort Claims Act, and which was settled by VA's District Counsel in Houston, Texas in approximately April 1985. After undertaking any additional indicated development, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional 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, 465 8 (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. Mark D. Hindin Member, Board of Veterans' Appeals - 4 - Under 38 U.S.C.A. 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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). 5 -