Single Judge Application, Bartlett v. Shinseki, 24 Vet.App. 328 (2011); Clarified Definition of "hospital care"under 38 U.S.C. 1115

Excerpt from decision below: "During the pendency of this appeal, the Court decided Bartlett v. Shinseki, 24 Vet.App. 328 (2011), which further clarified the definition of "hospital care"under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that "hospital care" is not limited to medical services and includes services unique to the hospitalization of patients. Id. at 332. Moreover, the Court stated that the term "hospital care" "depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms." Id. at 333. Here, the Board found that Mr. Breedlove's injury did not occur within the scope of "hospital care" because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, "hospital care" includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett. ============================================================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 08-3059 BRENDA BREEDLOVE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Brenda Breedlove, surviving spouse of Charles L. Breedlove, appeals through counsel a September 9, 2008, decision of the Board of Veterans' Appeals (Board) that denied accrued benefits for injuries Mr. Breedlove sustained from a door malfunction at a VA hospital. Mrs. Breedlove argues that reversal is required because the Board erred by (1) applying the incorrect legal standard to Mr. Breedlove's claim, (2) finding that Mr. Breedlove's injuries were the result of an intervening cause, and (3) providing an inadequate statement of reasons or bases for its reliance on two VA General Counsel Precedent Opinions and its rejection of Mr. Breedlove's lay testimony. The Secretary disputes these contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Board's decision will be set aside and the matter remanded for further adjudication. During the pendency of this appeal, the Court decided Bartlett v. Shinseki, 24 Vet.App. 328 (2011), which further clarified the definition of "hospital care"under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that "hospital care" is not limited to medical services and includes services unique to the hospitalization of patients. Id. at 332. Moreover, the Court stated that the term "hospital care" "depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms." Id. at 333. Here, the Board found that Mr. Breedlove's injury did not occur within the scope of "hospital care" because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, "hospital care" includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett. See 38 U.S.C. § 7252(a) (authorizing Court to remand as appropriate); Maggitt v. West, 2002 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if the Court has jurisdiction over a claim, issues presented for the first time on appeal may be remanded to the Board for further development); Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991) (remanding case to the Board without vacating or setting aside Board decision on appeal). On remand, Mrs. Breedlove may present, and the Board must consider, any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. For the reasons stated above, the September 9, 2008, decision of the Board is SET ASIDE and the matter REMANDED for further adjudication. DATED: December 16, 2011 Copies to: Michael D. Maloney, Esq. VA General Counsel (027) 2