Citation Nr: 0811137 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-11 834A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation for residuals of a stroke under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from September 1967 to June 1971. This appeal arises from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran is seeking compensation for residuals of a stroke which he contends resulted from an aortobifemoral bypass graft performed on January 26, 2001 at the Bay Pines VA Medical Center. The VA January and February Discharge Summary includes diagnosis of a left hemisphere infarct with residual right upper extremity flaccid paralysis. In reviewing the claims folder, the Board noted that on three occasions some of the veteran's VA records were obtained. Significantly, however, since the veteran's physical status prior to the surgery is considered in determining whether there is "additional disability" caused by VA treatment, and the VA records in the claims folder are dated beginning in January 2001, additional VA medical records dated prior to 2001 should be obtained. In January 2003, the veteran was examined by VA and an opinion obtained. The report of that examination does not indicate that the veteran's medical records were available or reviewed. The opinion also does not appear to explicitly address the criteria considered when determining entitlement to benefits under 38 U.S.C.A. § 1151. Another opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. VA should request the veteran's complete VA records of treatment from the Bay Pines VA Medical Center dating from January 2000 to January 25, 2001. 2. Next, VA should arrange for the veteran's claims file to be provided to a person with the appropriate expertise for purposes of obtaining a medical opinion that addresses the following: a.) Did the veteran develop any additional disability caused by VA treatment received in January 2001 and February 2001? b.) If it is found that there is additional disability caused by VA treatment, s/he should express an opinion as to: (i) whether the veteran incurred such additional disability as a result of carelessness, negligence, lack of proper skill, error of judgment, or similar instance of fault on the part of VA medical professionals in providing the treatment; and (ii) whether any additional disability was the result of an event not reasonably foreseeable. A rationale for all opinions expressed should be included. 3. If the benefit sought on appeal remains denied the veteran and his representative should be provided with an appropriate supplemental statement of the case and be given opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).