Citation Nr: 0114361 Decision Date: 05/22/01 Archive Date: 05/30/01 DOCKET NO. 97-29 523A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for abdominal aortic aneurysm with bilateral iliac artery aneurysm and left popliteal aneurysm with aortoiliac bypass, left frontal intraparenchymal hematoma with multiple intercranial hemorrhages, and status post left frontoparietal craniotomy, as a result of treatment by the Department of Veterans Affairs (VA). REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel REMAND The veteran had active duty from September 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Regional Office (RO) that denied the veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 for an abdominal aortic aneurysm. By decision in February 2000, the Board affirmed the decision of the RO. It concluded that there was no competent medical evidence linking the abdominal aortic aneurysm to the treatment the veteran received from the VA between June and August 1996. The Board found that the claim was not well grounded. The veteran subsequently appealed this determination to the United States Court of Appeals for Veterans Claims (Court) which, by Court order dated November 7, 2000, granted a Joint Motion for Remand. The Board's decision was vacated. In the Joint Motion, the Board was directed to consider whether the fact that the RO had considered the claim to be well grounded obligated the VA to assist the veteran. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. The Board acknowledges that the Court mandated that the Board discuss matters pertaining to a well-grounded claim. As noted above, the requirement that a veteran submit a well- grounded claim has, by statute, been eliminated. In Chisem v. Brown, 8 Vet. App. 374 (1995), the Court noted that several exceptions to the law of the case doctrine were recognized. One of the exceptions was when the controlling authority had since made a contrary decision of law. It is clear that the change in law represented by the VCAA falls within the exceptions. Since the requirement for a well- grounded claim no longer exists, any discussion of its current applicability would be irrelevant. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. A review of the record shows that the veteran underwent an aortobiiliac bypass-artery bypass graft in June 1996. He was treated from July to August 1996 for right frontal hemorrhage. In August 1996, a left frontal craniotomy with evacuation of intracerebral hematoma was performed. In this regard, the Board notes that in March 2001, the veteran's attorney submitted a statement from a private physician, Craig N. Bash, M.D. He concluded that the veteran's spontaneous intracranial hemorrhage in July 1996 was a direct secondary result of his abdominal aortic aneurysm surgery/subsequent bland infarct and anticoagulation. Dr. Bash added that the veteran's second intracranial hemorrhage was a direct result of his VA treatment as this hemorrhage was likely due to his seizure (with low levels of Dilantin)/fall and head trauma in conjunction with his anticoagulation/cerebral amyloid angiopathy. Finally, the physician opined that the veteran's first two brain hemorrhages and surgical decompression due to VA treatment were the direct cause of his current severe disabilities. It is noted that when this statement was submitted, the veteran's attorney specifically indicated that the veteran was not waiving his right to have this evidence initially considered by the RO. See 38 C.F.R. § 20.1304 (2000). Accordingly, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for an abdominal aortic aneurysm since 1996. After securing the necessary release, the RO should obtain these records. 2. The veteran should be afforded VA neurological and vascular examinations to determine the nature of the residuals of his abdominal aortic aneurysm. The claims folder should be made available to the examiners for review before the examinations. Each examiner is requested to furnish an opinion concerning whether it is at least as likely as not that the veteran has additional disability as the result of the treatment he received from the VA. The rationale for any opinion expressed should be set forth. 3. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 4. Thereafter, the RO should readjudicate this claim, considering all evidence of record, to include the statement from Dr. Bash and any additional evidence obtained pursuant to this remand. If the benefit sought on appeal remains denied, the appellant and the appellant's representative, if any, should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Deborah W. Singleton Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).