BVA9508187 DOCKET NO. 91-43 812 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 based on additional disability of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from April 1943 to January 1946. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 1990 rating action. The veteran filed a notice of disagreement with this action and was given a statement of the case. After he filed a substantive appeal, the case was forwarded to the Board for appellate consideration. The case was received by the Board in September 1991. In Gardner v. Derwinski, 1 Vet.App. 584, 588 (1991), the United States Court of Veterans Appeals (the Veteran's Court) held that 38 C.F.R. § 3.358(c)(3) was unlawful as exceeding the authority of the Secretary of Veterans Affairs (Secretary) and in violation of the statutory rights granted to veterans by Congress under 38 U.S.C.A. § 1151. Pursuant to a suggestion in the veteran's court opinion in Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991), the Department of Veterans Affairs (VA) instituted a Department-wide policy of holding in abeyance certain cases which were likely to fall within the precedent of Gardner. The United States Court of Appeals for the Federal Circuit subsequently affirmed the veteran's Court's decision. See Gardner v. Brown, 5 F. 3d 1456 (Fed. Cir. 1993). On December 12, 1994, the United States Supreme Court decided Brown v. Gardner, 115 S. Ct. 552 (1994). Specifically, the Supreme Court held that VA is not authorized by 38 U.S.C.A. § 1151 to exclude from compensation the "contemplated or foreseeable" results of non-negligent medical treatment, as provided by 38 C.F.R. § 3.358(c)(3). Thereafter, Secretary sought an opinion from the Attorney of the United States as to the full extent to which benefits were authorized under the Supreme Court's decision. The requested opinion was received from the Department of Justice's Office of Legal Counsel as to the full extent to which benefits were authorized under the Supreme Court's decision on January 20, 1995. On March 16, 1995, amended VA regulations were published to conform with the Supreme Court's decision; the interim final rule, effective November 25, 1991, was published in the Federal Register. The case was returned to the Board on March 14, 1995, for appellate consideration. REMAND The record shows that the veteran's claim for compensation under the provisions of § 1151 is based on VA treatment received between 1972 and 1975 at the VA facility in Cleveland, Ohio. In this regard, we note that at the time of the veteran's original admission to the VA's Cleveland facility, he was being treated for residuals of a June 1972 automobile accident for which he had received prior treatment at a private hospital and another VA facility, both in California.. The evidence of record reveals that following his automobile accident in June 1972, the veteran was treated at Golden State Memorial Hospital. At a hearing in April 1991, it was indicated that the Golden State Hospital was now called the Henry Mayo Clinic or Hospital, Valencia, California. A request for records from this facility produced records of treatment of the veteran's myocardial infarction in 1984, but not the records of the veteran's treatment following his auto accident in June 1972. No further attempt to obtain the 1972 records is indicated. Since the veteran's subsequent treatment at the VA facility in Cleveland was, in part, for the residuals of the 1972 auto accident, the records of the veteran's initial treatment following that accident, as well as the complete clinical records of the veteran's treatment by the VA, are vital in reaching a proper determination in this case. With respect to the VA records, it appears from statements contained in the hearing officer's decision that the complete hospital records folder was attached to the veteran's claims folder at one time. However, such volume(s) are no longer attached to the claims folder. It is noted that only Volume II of II was forwarded to the Board. In October 1993, the veteran indicated that he desired a hearing before a traveling member of the Board. A hearing was scheduled but was canceled due to hospitalization of the veteran. Subsequently, in February 1995, the veteran's representative indicated that the veteran could not attend a hearing at this time. It is not clear whether the veteran still desires a hearing. Requests for a travel board hearing may not be withdrawn by the veteran's representative without the consent of the veteran. Finally, as noted above, the regulation applicable to this case, 38 C.F.R. § 3.158(c)(3) has been changed to conform with the Court decisions mentioned above. The RO has not had the opportunity to consider the veteran's claim under the new regulatory criteria. In view of the foregoing, the case is being remanded for the following actions: 1. The RO should request copies of all pertinent records covering the veteran's treatment at the Henry Mayo Clinic (formerly Golden State Hospital), Valencia, California, following his automobile accident in June 1972 until his transfer to the VA facility in Sepulveda, California, for physical therapy. Any records obtained should be associated with the claims folder. 2. The RO should locate and associate with the veteran's claims folder Volume I of his claims folder. In addition, the RO should associate his complete hospital clinical folder or copies thereof, which is shown to have been previously associated with the claims folder. The folder or copies thereof should include material covering the veteran's treatment by the VA following his transfer from the private hospital in July 1972 to the VA's Sepulveda, California, facility and thereafter to the VA's Cleveland facility. Once obtained, these records should be associated with the claims folder. 3. The veteran should be contacted to clarify whether he has withdrawn his request for a travel board hearing, as indicated by his representative. If not, the RO should take any appropriate action. 4. The RO should then consider the veteran's claim in light of the complete evidentiary record and the changes embodied in the newly implemented 38 C.F.R. § 3.158(c)(3), effective November 25, 1991. If deemed necessary, the RO should obtain review of the claims folder for appropriate specialists to determine whether the veteran has additional disability resulting from his VA hospitalization or medical or surgical treatment. When the above actions have been completed, if the case remains denied, the veteran and his representative should be furnished a supplemental statement of the case covering the new evidence and new regulatory provisions. After they have had an adequate opportunity to respond, the case should then be returned to the Board for further appellate review, if in order. The purposes of this REMAND are to obtain clarifying data and to provide the veteran due process of law. V. L. JORDAN 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).