Citation Nr: 0006692 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-11 680 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for hearing loss in the right ear as a result of surgeries performed at a VA facility in 1980 and 1981. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from October 1948 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision in which the RO denied compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for hearing loss in the right ear claimed to have resulted following surgeries performed at the Boston, Massachusetts VA Medical Center (VAMC) in 1980 and 1981. REMAND The Board notes that the relevant statutory criteria applicable to this case appear at 38 U.S.C.A. § 1151 (West 1991), which provides that, if a veteran suffers an injury or an aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the veteran's own willful misconduct, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service- connected. See 38 C.F.R. § 3.358(a), 38 C.F.R. § 3.800(a) (1998). Earlier interpretations of this statute, embodied in regulations, required evidence of negligence or other fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to benefits under 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (formerly, the United States Court of Veterans Appeals) (Court) in the case of Gardner v. Derwinski, 1 Vet.App. 584 (1991). That decision was affirmed by both the United States Court of Appeals for the Federal Circuit, in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, in Brown v. Gardner, 513 U.S. 115 (1994). In March 1995, the Secretary of Veterans Affairs published an interim rule amending 38 C.F.R. § 3.358 to conform with the Supreme Court decision. The amendment was made effective November 25, 1991, the date the initial Gardner decision was issued by the Court of Appeals for Veterans Claims. 60 Fed. Reg. 14,222 (Mar. 16, 1995). The interim rule was later adopted as a final rule, 61 Fed. Reg. 25,787 (May 23, 1996), and codified at 38 C.F.R. § 3.358(c) (1998). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to include 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); see also VAOPGCPREC 40- 97 (Dec. 31, 1997). The veteran's claim was filed in December 1997 and, therefore, the amended 38 U.S.C.A. § 1151 is for application in this case. Nevertheless, in the May 1998 rating decision, the RO denied compensation benefits under the provisions of 38 U.S.C.A. § 1151 applicable for claims filed before October 1, 1997, on the basis that the veteran's hearing had worsened as a result of natural progression and not the result of VA medical services. There was no commentary regarding the statutory and regulatory changes and no consideration of the veteran's claim under the criteria for claims filed after October 1, 1997. In addition, the RO did not cite any of the laws and regulations pertaining to claims pursued under the provisions of 38 U.S.C.A. § 1151 in the rating decision or in the June 1998 statement of the case. Because the RO applied the incorrect law (the standard in effect for claims filed prior to October 1, 1997), the case must be returned to the RO for further development and adjudication prior to initial consideration by the Board of whether the veteran has presented a well-grounded claim. In addition, in his substantive appeal to the Board, the veteran maintains that there are VA records which have not been associated with the claims folder. Specifically, he has indicated that the records pertaining to his second ear surgery at the Boston, Massachusetts VAMC in 1981 are not in the claims folder. Appellate review of the claims folder, however, reveals that the nurse's notes and the operative report from the 1981 ear surgery are in the claims folder. The Board does note, however, that the RO did not appear to consider the 1981 VA surgery in either the rating action or in the statement of the case. As such, it is unclear whether the RO considered those records in the adjudication of the veteran's claim. On remand, the RO is reminded that the veteran's claim is based on both the 1980 and 1981 ear surgeries at the Boston, Massachusetts VAMC. To the extent that the veteran alleges there are additional VA treatment records which are not part of the claims folder, aside from those records from the 1981 surgery (which have been shown to be currently associated with the claims folder), he should identify those records for the RO so that they may be obtained and placed in the claims folder. The case is remanded to the RO for the following action: 1. The RO should contact the veteran and ask him to identify the VA treatment records he believes have not been associated with the claims folder which are pertinent to his claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151. Based on his response, the RO should obtain all of the identified VA records that have not been associated with the claims folder. 2. Following the receipt of any additional evidence, the RO should adjudicate the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 under the appropriate version of 38 U.S.C.A. § 1151 pertaining to claims filed after October 1, 1997. The veteran should be advised of the laws and regulations pertaining to claims filed after October 1, 1997, and given the opportunity to submit evidence to support his claim based on those criteria. 3. If the determination remains adverse to the veteran, both the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond within the applicable time before the matter is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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 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. JACQUELINE E. MONROE 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).