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).