Chicco v. Derwinski

Appellant, Joseph S. Chicco, seeks non-service-connected disability pension on the basis that his multiple joint arthritis and other disabilities prevent him from obtaining substantially gainful employment. See 38 C.F.R. § 4.17 (1990). Appellee, Secretary of Veterans Affairs (Secretary), has filed a motion for summary affirmance on the grounds that a review of the record does not demonstrate any error by the Board of Veterans’ Appeals (BVA). Motion papers at 5. This Court has jurisdiction to hear the appeal pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)).

A review of the BVA decision and record before us reveals that a remand is warranted for consideration under the principles set forth in Gilbert v. Derwinski, 1 Vet.App. 49 (1990) and Manio v. Derwinski, 1 Vet.App. 140 (1991). It also appears that appellant may have an outstanding claim under 38 U.S.C. § 351 (1988) or a claim for medical malpractice.

We remand this case to the BVA for further action consistent with this opinion. The BVA is further ordered to direct the Regional Office to examine appellant’s apparent claims under § 351 and/or for medical malpractice.

It is so Ordered.