Citation Nr: 0007948 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 93-36 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for a left foot disability, based on additional disability due to hospitalization and surgery at a Department of Veterans Affairs (VA) facility from June to July 1987. REPRESENTATION Appellant represented by: Texas Veterans Commission INTRODUCTION The veteran served on active duty from September 1963 to June 1964. The current appeal arose from a March 1991 rating decision of the VA Regional Office (RO) in Houston, Texas. The RO denied entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a left foot disability, based on additional disability due to hospitalization and surgery at a VA facility from June to July 1987. The Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicatory actions in October 1997. In December 1999 the RO affirmed the denial of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a left foot disability, based on additional disability due to hospitalization and surgery at a VA facility from June to July 1987. The case has been returned to the Board for further appellate review. REMAND 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 United States Court of Appeals for Veterans Claims (Court) 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, 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. In October 1997 the Board remanded the veteran's claim to the RO for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for further development and adjudicative actions. The RO was to consider which criteria were more favorable to the veteran's claim, those prior or subsequent to those criteria which became effective October 1, 1997. In view of the opinion from the VA General Counsel, VAOPGCPREC 40-97, all claims filed prior to October 1, 1997 must be evaluated under those criteria effective prior to this date. This is the veteran's case whose claim was filed in 1990. The RO was also directed to obtain additional medical records. The RO obtained additional medical records and had the veteran examined by a VA physician who was to provide an opinion as to whether the veteran had incurred additional disability of the left foot as the result of VA hospitalization and surgery from June to July 1987. Initially the examination was completed, but the VA examiner did not provide an opinion as directed by the RO referable to whether the veteran had incurred additional disability of the left foot as the result of VA hospitalization and surgery from June to July 1987. The claims file was returned to the examiner for the requested opinion; however, he merely stated that his previous findings were correct and that he had reviewed the entire evidentiary record. The present situation in the veteran's case is analogous to the situation wherein the Board has remanded a case to the RO and directed the RO to obtain a medical examination as well as a medical opinion as to whether a veteran has incurred aditional disability secondary to VA hospitalization, examination, or treatment pursuant to the provisions of 38 U.S.C.A. § 1151. In such situations, the Board errs when it fails to ensure compliance with its directives. Stegall v. West, 11 Vet. App. 268 (1998). In the case at hand, the RO has erred in its failure to ensure compliance with its return of the case to the Board without obtaining the medical opinion that it on two occasions requested. Stegall, supra. Accordingly, the probability of a favorable determination of the claimant's appeal rests on the local VA physician's responding to the RO's directive and providing a professional medical opinion as to whether the veteran did in fact incur additional disability to his left foot as a consequence of the VA hospitalization and surgery from June to July 1987. The Board accordingly finds that the case must again be returned to the RO in order to secure the opinion from the local VA medical professional. Stegall, supra. Accordingly, the case is remanded to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should again refer the veteran's claims file and a copy of this remand to the VA examiner, identified as Dr. KRH, for the purpose of providing an opinion as to whether the veteran incurred additional disability of the left foot secondary to VA hospitalization and surgery from June to July 1987. Any opinion expressed by Dr. KRH must be accompanied by a complete rationale. If this physician is no longer available, the RO should refer the claims file to another appropriate specialist for expression of a medical opinion as noted above. Any opinion expressed by this other physician should be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that the following requested development has been completed. In particular, the RO should review the medical opinion provided to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a left foot disability due to hospitalization and surgery at a VA medical facility from June to July 1987. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH 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).