Citation Nr: 1040468	
Decision Date: 10/28/10    Archive Date: 11/04/10

DOCKET NO.  06-14 183A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, 
North Carolina


THE ISSUE

Entitlement to compensation benefits under the provisions of 
38 U.S.C.A. § 1151 (West 2002) for residuals of a transurethral 
resection of the prostate.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The Veteran served on active duty for more than ten years, 
including the period from January 1968 to January 1974.

By letter dated September 2005, the Regional Office (RO) informed 
the Veteran that his claim for benefits pursuant to 38 U.S.C.A. 
§ 1151 was denied.  He filed a timely appeal to the Board of 
Veterans' Appeals (Board).

The Veteran was scheduled to testify at a hearing before a 
Veterans Law Judge at the RO in May 2007.  He cancelled the 
hearing in a letter submitted in April 2007.


FINDINGS OF FACT

1.  The Veteran underwent a transurethral resection of the 
prostate at the Portsmouth Naval Medical Center in September 
2002.

2.  VA has no jurisdiction over this facility.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for 
residuals of a transurethral resection of the prostate have not 
been met.  38 U.S.C.A. §§ 1151, 1701 (West 2002); 38 C.F.R. 
§ 3.361(f) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act (VCAA) redefined VA's duty to 
assist the appellant in the development of a claim.  VA 
regulations for the implementation of the VCAA were codified as 
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) 
(2010).

However, the Board points out that there are some claims to which 
VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 
(2001).  One such claim is where, as here, there is no dispute as 
to the facts, and the law is dispositive.  Mason v. Principi, 16 
Vet. App. 129.  The United States Court of Appeals for Veterans 
Claims (Court) has held that the VCAA does not affect matters on 
appeal when the question is limited to statutory interpretation.  
See Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Thus, the 
Board concludes that no further action is necessary under the 
VCAA, since all evidence needed to adjudicate the claim is of 
record and the law is dispositive.

Analysis 

The statute governing the award of compensation for additional 
disability that was caused by VA hospital care, medical or 
surgical treatment, or examination, is found at 38 U.S.C.A. § 
1151.  

In pertinent part, 38 U.S.C.A. § 1151 (West 2002) provides:

(a) Compensation under this chapter and dependency 
and indemnity compensation under chapter 13 of this 
title shall be awarded for a qualifying additional 
disability or a qualifying death of a veteran in the 
same manner as if such additional disability or death 
were service-connected.  For purposes of this 
section, a disability or death is a qualifying 
additional disability or qualifying death if the 
disability or death was not the result of the 
veteran's willful misconduct and--

(1) the disability or death was caused by hospital 
care, medical or surgical treatment, or examination 
furnished the veteran under any law administered by 
the Secretary, either by a Department employee or in 
a Department facility as defined in section 
1701(3)(A) of this title, and the proximate cause of 
the disability or death was- (A) carelessness, 
negligence, lack of proper skill, error in judgment, 
or similar instance of fault on the part of the 
Department in furnishing the hospital care, medical 
or surgical treatment, or examination; or (B) an 
event not reasonably foreseeable.

The term "facilities of the Department" means 

(A) facilities over which the Secretary has direct 
jurisdiction; 
(B) Government facilities for which the Secretary 
contracts; and 
(C) public or private facilities at which the 
Secretary provides recreational activities for 
patients receiving care under section 1710 of this 
title.  38 U.S.C.A. § 1701(3)(A-C).

Under 38 C.F.R. § 3.361(f), the following are not hospital care, 
medical or surgical treatment, or examination furnished by a 
Department employee or in a Department facility within the 
meaning of 38 U.S.C.A. § 1151(a):  

(1)  Hospital care or medical services furnished 
under a contract made under 38 U.S.C. § 1703.  
      (2)  Nursing home care furnished under 38 U.S.C. 
§ 1720.
(3)  Hospital care or medical services, including 
examination, provided under 38 U.S.C. § 8153 in a 
facility over which the Secretary does not have 
direct jurisdiction.

The underlying facts are not in dispute.  The Veteran was 
referred by a VA physician to the Portsmouth Naval Hospital where 
a transurethral resection of the prostate was performed in 
September 2002.  He alleges he suffered additional disability due 
to the surgery performed at the Naval Hospital.

Of record is a Department of Defense/VA sharing agreement 
disclosing the Veteran had been referred from the Hampton VA 
Medical Center to the Portsmouth Naval Medical Center.

The very terms of 38 U.S.C.A. § 1151 (West 2002) limit coverage 
to a facility over which the VA Secretary has direct 
jurisdiction, and not one for which the VA contracted.  This is 
reinforced by the exclusions set forth in 38 C.F.R. § 3.661(f).  

The Veteran argues that because there is a sharing agreement 
between the Portsmouth Naval Medical Center and VA that his 
treatment at the Naval Hospital is subject to the same terms as 
though provided in a VA facility.  He contends that 38 U.S.C.A. 
§ 1151 does not differentiate between treatment or 
hospitalization furnished by a VA through an independent 
contractor and treatment furnished directly by VA.  The Board 
notes that the Veteran's representative submitted a copy of VA 
General Counsel Advisory Opinion 6-98 which concluded that for a 
claim filed prior to October 1, 1997, benefits may be paid under 
former 38 U.S.C.A. § 1151 for injuries resulting from the 
Veteran's treatment in a non-VA facility pursuant to a sharing 
agreement under 38 U.S.C.A. § 8153.  The Board notes that the 
provisions of § 8153 permit the Secretary to make arrangements, 
by contract or other form of agreement for the mutual use, or 
exchange of use, of health-care resources between Department 
health-care facilities and any health-care provider, or other 
entity or individual.  38 U.S.C.A. § 8153 (a)(1) (West 2002).  

The Board has considered the contentions of the Veteran and his 
representative.  However, their arguments appear to be based on 
an old version of 38 U.S.C.A. § 1151, which does not apply to any 
claim filed after October 1, 1997.  The General Counsel Advisory 
Opinion noted above was specifically limited as pertaining to a 
claim for benefits under the provisions of 38 U.S.C.A. § 1151 in 
effect prior to October 1, 1997.  Here, the Veteran filed his 
claim in May 2005 and only the current version of 38 U.S.C.A. 
§ 1151 applies.  The current version of 38 U.S.C.A. § 1151, as 
noted above, specifies that the provisions of that statute apply 
to disability caused by care, treatment, or examination furnished 
by a Department employee or in a Department facility as defined 
by 38 U.S.C.A. § 1701(3)(A).  That statutory provision defines 
Department facility as a facility over which the Secretary has 
direct jurisdiction.  38 U.S.C.A. § 1701(3)(A).  The implementing 
regulation, 38 C.F.R. § 3.361, specifically indicates that 
hospital care or medical services furnished under a contract made 
under 38 U.S.C.A. § 1703 or under 38 U.S.C.A. § 8153 are not 
hospital care, medical or surgical treatment, or examination 
furnished by a Department employee or in a Department facility 
within the meaning of 38 U.S.C.A. § 1151(a).  38 C.F.R. 
§ 3.361(f) (1), (3) (2010).

Thus, since the Veteran claims to have sustained additional 
disability at a facility not under the direct jurisdiction of the 
Secretary, his claim for benefits under 38 U.S.C.A. § 1151 for 
such disability has no legal merit.  See Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994) (where the law is dispositive of the claim, 
it should be denied because of lack of legal entitlement under 
the law).  Accordingly, the appeal is denied.


ORDER

Compensation benefits under the provisions of 38 U.S.C.A. § 1151 
(West 2002) for residuals of a transurethral resection of the 
prostate are denied.



____________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs