Citation Nr: 1632710	
Decision Date: 08/17/16    Archive Date: 08/24/16

DOCKET NO.  08-00 048A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a stroke other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Barstow, Counsel
INTRODUCTION

The Veteran had active military service from April 1981 to June 1984.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In February 2009, the Veteran testified at a hearing before the undersigned.  A transcript of the hearing has been associated with the claims file.  

A Board decision in August 2011 granted compensation under 38 U.S.C.A. § 1151 for residuals of a stroke, including right upper extremity numbness and weakness.  The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as he disagreed with the residuals granted.  In an Order dated in January 2013, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision only so far as it failed to adjudicate a claim for residuals other than right upper extremity numbness and weakness and remand the case for readjudication in accordance with the JMR.

The case was subsequently remanded in January 2014 in accordance with the JMR to obtain additional treatment records and afford the Veteran VA examinations to determine the residuals of his stroke.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Following the requested development, a Board decision in January 2016 granted service connection for visual field defects, but denied service connection for other residuals.  As discussed below, that part of the Board's decision denying other residuals is being vacated and remanded.  

As noted by the Board in January 2016, in a September 2015 statement, the Veteran's representative asserted that he was entitled to compensation for loss of fine coordinated movements on his right side.  As the Veteran is currently receiving compensation for right upper extremity weakness, the Board construes this statement as a claim for an increased rating.  Furthermore, the statement also raises the issue of entitlement to a total rating based on individual employability due to service-connected disability (TDIU).  As such, the issues of an increased rating for right upper extremity weakness and entitlement to a TDIU have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015).

The issue of compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a stroke other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The January 2016 Board decision violated the Veteran's right to due process of law, when it denied the Veteran's claim prior to remanding for RO review of additional evidence submitted by the representative and not responding to a request to grant an extension of time for the submission of additional evidence.  


CONCLUSION OF LAW

The portion of the January 2016 Board decision, which denied the Veteran compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a stroke other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering, is vacated.  38 U.S.C.A. §§ 7103(c), 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). 

In January 2016, the Board issued a decision granting compensation under 38 U.S.C.A. § 1151 for visual field defects as a residual of a stroke, but denying compensation for residuals other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering.  In May 2016, the Veteran's representative filed a motion to vacate the portion of the January 2016 Board decision denying compensation for residuals other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering.  The representative asserted that the Veteran had not been afforded due process of law.  Specifically, the representative indicated that additional evidence submitted in September 2015 and December 2015 was requested to have been reviewed by the RO.  The representative also indicated that in January 2016, an extension of time to submit additional evidence had been requested that the Board did not address.  

In this case, evidence received prior to the January 2016 Board decision that was not cumulative or duplicative of other evidence previously considered by the RO, as well as the request for an extension of time to submit additional evidence, was uploaded in the Veteran's electronic claims file after the decision was dispatched.  In light of this, the January 2016 Board decision denying entitlement to a compensation under 38 U.S.C.A. § 1151 for residuals of a stroke other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering is vacated.



ORDER

That part of the January 2016 Board decision denying entitlement to a compensation under 38 U.S.C.A. § 1151 for residuals of a stroke other than visual field defects, right upper extremity weakness and numbness, and mild speech dysfluency, dysarthria, and stuttering is vacated.


REMAND

Regrettably, a remand is necessary.  The Veteran's representative submitted additional argument to the RO that was not cumulative or duplicative of evidence previously considered.  He expressly requested that the RO review the additional argument prior to certifying the case to the Board.  As such, a remand is necessary.  On remand, as the Veteran's representative argued that a psychiatric examination was inadequate, the Veteran should be provided a new examination.

Accordingly, the case is REMANDED for the following action:

1.  After obtaining the appropriate release of information forms where necessary, procure records of treatment that the Veteran has recently received.  The Board is particularly interested in records of such treatment that the Veteran may have received from the Cleveland VA Medical Center.  If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file.  All such available reports should be associated with the claims folder.
 
2.  Accord the Veteran an appropriate an VA examination to determine the nature, extent, and etiology of any diagnosed psychiatric disorder.  The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.  

The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others, review the record, and offer an opinion as to the whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed psychiatric disorder is a residual of his July 2005 stroke.

The examiner should address the September 2014 central nervous system examination showing a report of depression, cognitive impairment or dementia attributable to a central nervous system disease and/or its treatment and the June 2015 psychiatric examination showing that it was not possible without resort to mere speculation to determine whether the Veteran had mental health manifestations or any cognitive impairments due to the stroke.

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner must resort to speculation to render the requested opinions, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices.
3.  Ensure that the examination report complies with (answer the questions posed in) this Remand.  If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate.

4.  Then, readjudicate the issue remaining on appeal.  If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration.

The Veteran has the right to submit additional evidence and argument on the matter or matters 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 2014).



______________________________________________
MILO H. HAWLEY 
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs