dissenting:
The members of the majority fail to recognize that submitting to an examination pursuant to 38 U.S.C.A. § 1151 involves the concepts of both location and process. In my view, the Department of Veterans Affairs (VA) examination is the sum total of a process, rather than simply an instant in which the physician lays hands upon the veteran in the examination room. I would hold that the examination in the instant case had begun at the moment when appellant checked in, and that it was at that moment that he submitted to an examination for the purposes of 38 U.S.C.A. § 1151 (West 1991).
I agree with the majority that if, for example, a veteran checks into a VA facility for a scheduled examination and is told to wait twenty minutes, but leaves the facility and is subsequently hit by a car, he would not be entitled to benefits under 38 U.S.C.A. § 1151. In this hypothetical situation, while the examination process commenced when the veteran checked in at the scheduled time, the injury did not occur on VA premises. Since he was not located on VA property, they had no duty to insure his safety. Accordingly, this veteran is not covered by the statute because his injury did not occur on VA property.
In contrast, the appellant reported for an examination at the VA Medical Center (VAMC) on February 2, 1990, at the hour appointed by the VA. After checking in, he was informed that there would be a twenty minute wait. Appellant went for a *507walk on the VA premises and was struck in the lower torso by an unidentified patient in a motorized wheelchair. At no time did the appellant leave the VA facility.
In this case, appellant submitted to an examination at the moment he checked in because he was under VA authority and control. Thirty-eight U.S.C.A. § 1151 provides that a veteran who suffers “an injury, or an aggravation of an injury as the result of having submitted to an examination” shall be awarded benefits. 38 U.S.C.A. § 1151 (emphasis added). At the moment appellant checked in he submitted to the control and authority of the VA. He remained under that control and authority while on VA premises. Accordingly, at the moment appellant checked in and for so long as he remained on VA premises, the VA was responsible for taking all reasonable precautionary measures to assure the appellant’s safety.
The reality is that appellant would not have sustained an injury unless he had reported for the VA examination. As a result of the VA’s process and procedure he was required to wait for twenty minutes. He remained on the VA premises and remained within the control of the VA. Now it appears that he has the burden of an additional disability.
Although during oral argument counsel for the Secretary cited seventy years of legislative history which she interpreted as supporting the Secretary’s position that appellant did not submit to an examination for the purposes of 38 U.S.C.A. § 1151, counsel was unable to point to a single statement in the legislative history supporting the Secretary’s construction of the statute. Where there is no clear evidence of congressional intent, the plain meaning of a statute must prevail. Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991).
Furthermore, counsel for the Secretary also argued during oral argument that 38 U.S.C.A. § 1151 is activated when the diagnostic process has begun. That is, 38 U.S.C.A. § 1151 is applicable when there is an attempt to diagnose or treat the condition. This construction fails to explain or distinguish between the difference in the language of two clauses in the statute— “as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation” and “as a result of having submitted to an examination.” 38 U.S.C.A. § 1151. By treating these two clauses in the same way, the Secretary reads “having submitted to” out of the statute, making it superfluous. Clearly, Congress could have provided for a grant of benefits for injuries incurred “as the result of” examinations. The fact that it did not, I believe, is significant. Looking at the plain meaning of the words “as the result of having submitted to an examination,” 38 U.S.C.A. § 1151, I conclude that appellant, who was injured while under the authority and control of the VA, had submitted to an examination under 38 U.S.C.A. § 1151 and is therefore, entitled to benefits under the statute.
Because the BVA determined that 38 U.S.C.A. § 1151 is not applicable in this case, it did not make any factual determinations with regard to whether appellant’s prior back injury was aggravated by the accident. I would remand in order for the Board to review the medical evidence prior to and after the accident. See 38 U.S.C.A. § 5107(a) (West 1991); Green v. Derwinski, 1 Vet.App. 121, 123-24 (1991). I would also remand for the Board to assist appellant in developing his claim by providing a medical examination to determine his current condition and the extent to which his back condition was affected by the accident. Id.