Contreras v. Derwinski

2 Vet. App. 275, 1992 U.S. Vet. App. LEXIS 71, 1992 WL 59035

• Court: United States Court of Appeals for Veterans Claims
• Decided: March 25, 1992
• Docket: No. 91-990
• Status: Published

Opinion

ORDER

On February 10, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for remand and to stay proceedings. On February 24, 1992, appellant responded in opposition to the Secretary's motion.

The Secretary’s motion for remand asserts as a basis for remand this Court’s decision in Gardner v. Derwinski, 1 Vet.App. 584 (1991), appeal docketed (Fed.Cir. Mar. 10, 1992), holding unlawful the regulation (38 C.F.R. § 3.358(c)(3)) applied by the Board of Veterans’ Appeals (BVA) in its March 28, 1991, decision denying benefits in this case for disability allegedly resulting from Veterans’ Administration (now Department of Veterans Affairs) (VA) medical treatment. The Secretary contends that “this case should be remanded for consideration of the appellant’s claim in light of the holding in Gardner.” However, the Secretary fails to point out, or apparently take into account, that the BVA specifically found that none of the claimed disabilities resulted from any such VA treatment. Although the BVA also found that the veteran’s claimed disabilities were not “the result of an accident, or of negligence, carelessness, lack of proper skill, error of judgment, or other instances of indicated fault on the part of [VA] official treating personnel”, Edward A. Contreras, BVA at 6-7 (Mar. 28, 1991), which are the criteria set forth in the invalidated regulation, the Board’s decision directly addressed and decided the question of causation independent of the question of fault. Hence, remand for readjudication in light of Gardner is not indicated at this point.

On consideration of the foregoing, it is

ORDERED that the Secretary’s motion for remand is denied. It is further

ORDERED that the Secretary shall file a brief within 30 days after the date of this order. U.S.Vet.App.R. 26(b), 31(a), (c).