Citation Nr: 1646870	
Decision Date: 12/14/16    Archive Date: 12/21/16

DOCKET NO.  11-20 006	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a cerebrovascular accident.


REPRESENTATION

Appellant represented by:	Daniel Krasnegor, Attorney at Law


ATTORNEY FOR THE BOARD

N. Nelson, Associate Counsel






INTRODUCTION

The Veteran served on active duty from September 1977 to May 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In August 2015, the Board denied entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a cerebrovascular accident.  In December 2015, however, the Board vacated that decision due to an extension request by the Veteran's representative, which had been made prior to the Board's decision.  In June 2016, the Board denied the claim again.  The Veteran's representative submitted a motion to vacate the Board's June 2016 decision on the basis that the Veteran was denied due process.  The Board denied the motion to vacate in August 2016.  The Veteran's representative subsequently motioned again to vacate the Board's June 2016 decision, and the motion is now before the Board for consideration.

The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a cerebrovascular accident is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On June 1, 2016, the Board issued a decision denying the Veteran's 38 U.S.C.A. § 1151 claim for residuals of a cerebrovascular accident. 

 2.  Prior to the June 2016 Board decision, the Veteran's representative submitted additional evidence in support of the Veteran's claim.  A Supplemental Statement of the Case was not provided, and the evidence was not considered in the Board decision. 


CONCLUSION OF LAW

The June 1, 2016 Board decision denying the Veteran's 38 U.S.C.A. § 1151 claim for residuals of a cerebrovascular accident is vacated.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Order to Vacate

The Board may vacate an appellate decision at any time upon request of the appellant or his or her 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 this case, the Board denied the Veteran's 38 U.S.C.A. § 1151 claim for residuals of a cerebrovascular accident in December 2015.  However, prior to the Board's August 2015 decision, the Veteran's representative made an extension request to submit additional evidence in support of the Veteran's claim.  As such, to afford the Veteran due process, the Board vacated the August 2015 decision.  

On June 1, 2016, after the requested three-month extension passed, the Board denied the claim again.  The Veteran's representative submitted a motion to vacate the Board's June 2016 decision because the Veteran was denied due process.  The representative asserted specifically that due process was denied on the bases that (1) a medical opinion from Dr. R.B. was submitted in January 2016, and the June 2016 Board decision did not acknowledge or discuss the opinion; and (2) the Board did not remand the issue to allow for initial consideration of the evidence by the RO.  

The Board denied the motion to vacate in August 2016, noting that there was no record that the Board timely received the evidence at issue.  The Veteran's representative subsequently motioned again to vacate the Board's June 2016 decision, and attached a fax receipt showing that the Board received evidence in January 2016.  

As such, in order to accord due process to the Veteran, the Board is vacating the June 2016 Board decision that denied the Veteran's 38 U.S.C.A. § 1151 claim for residuals of a cerebrovascular accident.


ORDER

The Board's June 1, 2016 decision, which denied the 38 C.F.R. § 1151 claim for residuals of cerebrovascular accident, is vacated.


REMAND

As discussed above, the Board has vacated its June 1, 2016 decision addressing the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a cerebrovascular accident. 

As noted in the June 2016 motion to vacate, remand is required to provide the Veteran with a new SSOC that considers evidence and argument submitted after the most recent SSOC, specifically, the medical opinion by Dr. R.B. received in January 2016.

Accordingly, the case is REMANDED for the following action:

Readjudicate the claim on appeal in light of all the evidence of record, including the medical opinion by Dr. R.B. received by VA in January 2016.  If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and her representative and they should be afforded a reasonable opportunity for response.

The appellant 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).




______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs