UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 00-669

MICHELLE C. JONES, APPELLANT,

v\.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans Appeals

(Argued April 23, 2002 Decided August 7, 2002)

Michael P. Horan, of Washington, D.C., for the appellant.

Kathy A. Banfield, with whom Tim S. McClain, General Counsel; R. Randall
Campbell, Acting Assistant General Counsel; and Darryl A. Joe, Acting
Deputy Assistant General Counsel, all of Washington, D.C., were on the
pleadings, for the appellee.

Before FARLEY, HOLDAWAY, and STEINBERG, Judges.

STEINBERG, Judge: The appellant, the daughter of a Vietnam veteran,
appeals through counsel a March 15, 2000, decision of the Board of
Veterans\' Appeals (Board or BVA) that denied entitlement to her, as a
child of a Vietnam veteran, for a Department of Veterans Affairs (VA)
monetary allowance for a disability resulting from spina bifida. Record
(R.) at 6. The appellant filed a brief and a reply brief, and the
Secretary filed a brief. Oral argument was held on April 23, 2002. On
April 25, 2002, the Court ordered supplemental briefing from the
parties. In response to the Court\'s order, the Secretary filed a
supplemental record on appeal (ROA) and a supplemental memorandum of
law, and the appellant filed a reply to the Secretary\'s supplemental
memorandum. The Court has jurisdiction over the case under 38 U.S.C.
§§ 7252(a) and 7266(a). For the reasons set forth below, the Court will
vacate the Board decision on appeal and remand the matter for
readjudication.

I. Relevant Background

The veteran served in the U.S. Navy from July 1965 to November 1968 and
from December 1968 to July 1971. R. at 9, 130. He had service in Vietnam
and received the National Defense Service Medal with Bronze Star, the
Vietnam Service Medal, and three Purple Heart Medals. R. at 9. The
appellant was born on June 6, 1986. R. at 1.33.

A December 1997 medical report from Dr. MacDonald, a private physician,
recorded that the appellant was an \"11-year-old girl \[who\] is seen
for neurological follow-up of her encephalocele\", and stated that he
\"would like to ... repeat her MRI \[(Magnetic Resonance Imaging)\] scan
of the posterior fossa of the brain and cervical spine area since she
did have a syrinx in the past and we should follow that and see if there
is any major change.\" R. at 145. (Encephalocele is \"hernia of part of
the brain and meninges through a skull defect.\" DORLAND\'S ILLUSTRATED
MEDICAL DICTIONARY 548 (28th ed. 1994) \[hereinafter DORLAND\'S\].
Meninges are \"the three membranes that envelop the brain and spinal
cord\". DORLAND\'S at 1010. A syrinx is \"a tube or pipe\... \[or\] a
fistula\... \[or\] an abnormal cavity in the spinal cord in
syringomyelia.\" DORLAND\'S at 1647.)

In January 1998, the veteran filed an application for spina bifida
benefits for his daughter. R. at 137. In a. note attached to the
application, the veteran stated:

My daughter, Michelle Colleen Jones, was born on 6-6-86 at St. Joseph\'s
Hospital, Denver\[,\] Colorado. Three & 1/2 weeks prior to \[b\]irth, it
was detected on ultrasound that the child would have an occipital
encephalocele \[hereinafter OE\], a spinal cord defect, called a
\[n\]eural tube defect.

Along with this, she has hydrocephalus, controlled by bilateral shunts,
and \[is\] also \[d\]iagnosed with a Chiari II \[m\]alformation.

Her initial physician Dr. Peter Hulac\[,\] a \[n\]eo-\[n\]atologist\[,\]
\... and also Dr. Larry McLenny\[, a\] pediatric neurosurgeon\[,\]
informed my wife \[and me\] that this is in the \[s\]pina \[b\]ifida
family in the superior part of the spine.

R. at 138. (OE is \"an encephalocele in the occipital region\".
DORLAND\'S at 549. Occipital means \"located near the occipital bone, as
the occipital lobe of the brain\". DORLAND\'S at 1167.) A February 1998
letter from Dr. McLellan, a private physician, described the appellant
as \"an 11-year-old girl with an encephalocele\" and notes that
\"\[t\]his is associated with hydrocephalus\" and that \"\[o\]ther
anatomic anomalies co-existent with the encephalocele include a Chiari
\[m\]alformation which involves a herniation of a portion of cerebellum
through the skull outlet\[; s\]he \[also\] has a syrinx in the cervical
cord\". R. at 157.

In March 1998, a VA regional office (RO) denied the appellant\'s claim.
R. at 162. The RO stated that \"\[c\]urrent regulations allow a grant of
benefits only where there is protrusion of the meninges through the
vertebrae or bony encasement\" (R. at 161) (the Court can find no VA
regulation with such a limitation, and the Secretary was unable to
provide any basis for the RO statement (Supplemental memorandum at
2-3)), and the RO concluded that \[b\]y definition\[,\] an
encephalocele, which is the condition that Michelle is diagnosed with,
is not spina bifida\" (R. at 162). A Notice of Disagreement was filed on
behalf of the appellant (R. at 165), and the RO issued a Statement of
the Case (R. at 174-78).

An April 1998 letter from Dr. Steidler, a private neuroradiologist,
stated:

This letter is in regards to Michelle C. Jones\' diagnoses of
encephalocele, Chiari II malformation, and cervical syrinx as it relates
to spina bifida. Neural tube defects include multiple abnormalities,
only one of which is spina bifida. Spina bifida can be very mild and
incidental on radiographs, often at the lumbar region, and of no
clinical significance. However, multiple other neural tube closure
defects at other levels of the spine as well as the brain and skull can
be seen with multiple known associated anomalies such as Chiari II
malformation, syringohyrdromyelia, hyrdocephalus, callosal dysgenesis,
etc. Therefore, the neural tube closure defects, with spina bifida
referring to a finding which is often at the less serious end of this
spectrum\[,\] are considered to be a spectrum of related abnormalities.

R. at 186. A May 1998 letter from Dr. Houston, also a private
neuroradiologist, stated: \"\[OE\] is a defect in the skull and dura
with extra cranial extension of the intracranial structures located in
the occipital region. One etiology for cephalocele is failure of closure
of the sites of primary neural tube closure.\" R. at 187. In a May 1998
letter, Dr. MacDonald stated: \"\[The appellant\] had the \[OE\] with
secondary neurologic chronic problems including the shunt, truncal
instability, esotrophia, and spinal cord cyst. I think they have to
realize that this is a neural tube defect and that an \[OE\] is a form
of spina bifida or open spine\'\'. R. at 189. A May 1998 letter from
Dr. Yock, a private physician, stated that \"it is medically reasonable
to consider \[OB\] in the same category as \'spina bifida\' from both
emryologic and clinical perspectives.\" R. at 191.

In July 1998, the VARO requested an advisory opinion from the VA
Director of Compensation and Pension Service. R. at 193-94. This request
was then relayed to the VA Under Secretary for Health. R. at 196. In
response, Dr. Mather, VA Chief Public Health and Environmental Hazards
Officer, stated in pertinent part:

\[The appellant\] was born with an \[OE\] associated with hydrocephalus
and Arnold-Chiari malformation. She also has a spinal cord syrinx. The
encephalococele is definitely a neural tube defect, not by embryology or
sequelae. In Veterans and Agent Orange: Update 1996, the National
Academy of Sciences cited four veterans studies as the reason for their
conclusion that limited or suggestive evidence of an association between
agent orange and the birth defect, spina bifida, existed. Two of the
four veterans studies (the Ranch Hand and the Australian veterans
studies) refer specifically to neural tube defects and not to spina
bifida per se. (The Erickson and CDC \[(Centers for Disease Control)\]
studies refer to spina bifida and anencephaly, another neural tube
defect which is incompatible with life.) The neural tube defects
involving the brain instead of the spinal cord tend to be rarer because
many of the infants so affected do not survive. However, it is our
opinion that the \[OE\] defect is the equivalent of spina bifida and is
clearly within the intent of the legislation granting benefits to
offspring of Vietnam veterans.

R. at 198. In May 1999, the VA General Counsel issued a precedent
opinion that held that, for purposes of 38 U.S.C. § 1802, \"the term
\'spina bifida\' refers to a defective closure of the bony encasement of
the spinal cord, but does not include other neural tube defects such as
encephalocele and anencephaly.\" VA Gen. Coun. Prec. 5-99 (May 3, 1999)
\[hereinafter G.C. Prec. 5-99\]. On May 25, 1999, the RO affirmed the
prior denial of benefits. R. at 212. In the March 2000 BVA decision here
on appeal, the Board found that, \"\[p\]ursuant to \[G.C. Prec.\] 5-99,
the Board must find that \[OE\] is not a form of spina bifida\" and
denied the appellant\'s claim. R. at 5. The Board noted: \"The veteran
and the appellant are advised that were they to file a timely appeal of
this claim to the Court of Appeals for Veterans Claims (Court) the Court
would not necessarily be bound by \[G.C. Prec. 5-99\].\" Ibid.

II\. Analysis

The appellant argues that (1) G.C. Prec. 5-99 \"violates the plain
language of 38 U.S.C.\[\] § 1802\" and \"renders that portion of
\[section\] 1802 stating that VA must award special monetary benefits
\'for all forms and manifestations of spina bifida except spina bifida
occulta\' superfluous and without force by ignoring the word
'manifestations' and reading the statute out of context\" (Appellant\'s
Brief (Br.) at 7); (2) G.C. Prec. 5-99 is \"invalid in ignoring the
Supreme Court\'s rule of statutory interpretation that the agency must
resolve interpretative doubt in favor of the veteran\" (Br. at 8); (3)
\"\[t\]he \[G\]eneral \[C\]ounsel promulgated opinion 5-99 in
contravention of the Administrative Procedure\[\] Act (\'APA\')
rulemaking requirements by adopting this rule without the benefit of
public participation\" (Br. at 8); and (4) the Board erred by failing to
address the appellant\'s other conditions in order to \"determine
whether these conditions are \'forms and manifestations of spina
bifida\"\' (Br. at 7).

The Secretary argues that (1) G.C. Prec. 5-99 \"correctly interpreted 38
U.S.C. § 1802 as pertaining solely to spina bifida, not all neural tube
defects\[ and that t\]he ordinary meaning of the term \[\'\]spina
bifida\[\'\] and the legislative history of the statute overwhelmingly
support the General Counsel\'s conclusion\" (Secretary\'s Br. at 5); (2)
G.C. Prec. 5-99 \"constitutes an interpretative rule and is exempt from
\[APA notice and comment\] provisions\" (Secretary\'s Br. at 5); and (3)
\"\[the a\]ppellant\'s argument for remand fails because, as a matter of
law, she does not meet the requirements for benefits pursuant to
\[c\]hapter 18 of \[t\]itle 38\[,\] United States Code\", Secretary\'s
Br. at 6.

A. 38 U.S.C. § 1802 Generally and G.C. Prec. 5-99

Section 1802 of title 38, U.S. Code, provides in pertinent part:

§ 1802. Spina bifida conditions covered

This subchapter applies with respect to all forms and manifestations of
spina bifida except spina bifida occulta.

Section 1805 provides for monetary benefits to be paid to \"any child of
a Vietnam veteran for any disability resulting from spina bifida
suffered by such child.\" 38 U.S.C. § 1805; see also 38 U.S.C. §§ 1803
(health care benefits provided to \"a child of a Vietnam veteran who is
suffering from spina bifida\"), 1804 (same, as to vocational training
and rehabilitation).

\"\'The starting point in interpreting a statute is its language.\"\'
Lee (Raymond) v. West, 13 Vet.App. 388, 394 (2000) (quoting Good
Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).

The \"plain meaning \[of a statute\] must be given effect unless a
\'literal application of \[the\] statute \[or regulation\] will produce
a result demonstrably at odds with the intention of its drafters.\"\'
Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115
(1994); Fagan\[ v. West\], 13 Vet.App. \[48,\] 52 \[(1999)\]; Curtis\[
v. West\], 11 Vet.App. \[129,\] 133 \[(1998\]. \"If the intent of
Congress is clear, that is the end of the matter\". Skinner v. Brown, 27
F.3d 1571, 1572 (Fed. Cir. 1994) (quoting Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)),
aff'ing 4 Vet.App. 141 (1993)(mem.).

Lee (Raymond), supra.

Under 38 U.S.C. § 7104(c), the precedent opinions of the VA General
Counsel (GC) are binding on the Board. 38 U.S.C. § 7104(c); see Cycholl
v. Principi, 15 Vet.App. 355, 360 (2000) (citing Herlehy v. Principi, 15
Vet.App. 33, 34 (2001) (per curiam order)); see also 38 C.F.R.
§ 20.901(c) (2001). Hence, the Board was required to follow G.C. Prec.
5-99 to the extent that that opinion addressed issues pertinent to this
appellant\'s claim. That GC opinion first stated definitions, culled
from various Internet World Wide Web sites, of \"OE\" and \"spina
bifida\", and the definition of \"spina bifida\" from DORLAND\'S. G.C.
Prec 5-99 at 1-2. The GC opinion then cited legislative history,
including the National Academy of Sciences Institute of Medicine (IOM)
NAS report, which it describes as the impetus for the spina bifida
legislation. G.C. Prec. 5-99 at 3. The GC opinion stated as follows
regarding the NAS report:

As part of its discussion of this possible association, the IOM noted,
at page\[s\] 9-17, that certain epidemiologic studies \"suggest an
association between herbicide exposure and an increased risk of spina
bifida in association with anencephaly.\" Not only was the conclusion
reached by the IOM limited to \"spina bifida,\" the IOM also concluded,
at page\[s\] 9-17, that there was \"inadequate or insufficient evidence
to determine whether an association exists between exposure to the
herbicides and all other birth defects.\"

G.C. Prec. 5-99 at 3. In addition, G.C. Prec. 5-99 cited to statements
made by U.S. Senators Daschle and Rockefeller, as well as a letter from
the secretary of Veterans Affairs to the Speaker of the House and
President of the Senate, for the proposition that \"the framers of the
legislation were concerned only with defects of the spinal column\[,\]
as opposed to neural tube defects in general.\" G.C. Prec. 5-99 at 3-4.
The opinion then concluded:

The legislative history of chapter 18 is consistent with the
commonly\[\]accepted meaning of the statutory terms in indicating
Congress\' intention to limit the application of chapter 18 to only
those children of Vietnam veterans who suffer from spinal defects. We
believe that, had Congress intended to include neural tube defects such
as anencephaly and encephalocele, it would not have used the term
\"spina bifida.\"

G.C. Prec. 5-99 at 4. Significantly, however, the opinion did not
specifically address the meaning of the words \"all forms and
manifestations\" in section 1802, and in its conclusion did not mention
\"manifestations\". G.C. Prec. 5-99 at 4 (under \"HELD\").

A review of the pertinent legislative history of section 1802 reveals a
July 26, 1996, letter from the Secretary of Veterans Affairs to the
Speaker of the U.S. House of Representatives discussing the IOM findings
in the NAS report, and \"determin\[ing\] that a positive association
exists between exposure of a parent to herbicides during \... service
and the birth defect spina bifida.\" Supplemental (Suppl.) R. at 64. In
that letter, the Secretary asserted that enabling legislation was needed
in order to allow VA to compensate the offspring of Vietnam veterans for
spina bifida. Suppl. R. at 65. Attached to this letter was draft
legislation that, inter alia, defined \"spina bifida\" to mean \"all
forms of spina bifida other than spina bifida occulta.\" Suppl. R. at
70.

The legislative history also reveals other pertinent statements about
the spina bifida legislation. First is a statement from Senator Daschle:
\"Spina bifida occurs w hen the spinal cord does not close fully early
in pregnancy.\" 142 CONG. REC. S9878 (daily ed. Sept. 5, 1998). Second
is a statement from Senator Rockefeller:

Spina bifida, SB, means \'split spine.\' It is a defect of the neural
tube, the embryonic structure that evolves into the brain and the spinal
cord. It results from the failure of the spine to close properly in the
first months of pregnancy.

There are three types of spina bifida, the most common of which is
occulta, which is not disabling and is not included in the amendment
before us.

What is covered in the proposed amendment are the two much more severe
forms of spina bifida. In these forms, a cyst holding the spinal cord
membranes, nerve roots of the spinal cord, & the cord itself, usually
malformed, pokes through an open part of the spine; or there may be, in
fact, no cyst, but only a fully exposed section of the spinal cord and
the nerves.

142 CONG. REC. S9888 (daily ed. Sept. 5, 1998). However, neither the
above floor statements nor G.C. Prec. 5-99 addressed the reason for the
insertion into the legislation of \"and manifestations\", and the Court
has been unable to determine the reason; furthermore, the Court is not
satisfied that the words have no meaning. See Glover v. West, 185 F.3d
1328, 1332 (Fed. Cir. 1999) (stating that \"we attempt to give full
effect to all words contained within \[a\] statute or regulation,
thereby rendering superfluous as little of the statutory or regulatory
language as possible\").

B. Reasons or Bases

The Board is required to consider all \"potentially\" applicable
provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App.
589, 593 (1991) (Board failure to consider applicable regulation must be
set aside). The Board is also required to include in its decision a
written statement of the reasons or bases for its findings and
conclusions on all material issues of fact and law presented on the
record; that statement must be adequate to enable an appellant to
understand the precise basis for the Board\'s decision, as well as to
facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the
veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per
curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7
Vet.App. 36, 39-40 (1994); Gilbert, supra.

Dr. MacDonald opined in his May 1998 letter that OE \"is a form of spina
bifida or open spine\". R. at 189. Dr. Mather, VA\'s Chief Public Health
and Environmental Hazards Officer, opined that OE is \"clearly within
the intent of the legislation\" involved here. R. at 198. The Board
acknowledged both medical opinions in its decision (R. at 4), but failed
to discuss or analyze either. Rather, the Board, relying solely on the
definition of \"spina bifida\" from G.C. Prec. 5-99 (i.e., \"a defective
closure of the bony encasement of the cord, \... not includ\[ing\] other
neural tube defects such as encephalocele and anencephaly\"), concluded
that OE \"is not a form of spina bifida, notwithstanding the conflicting
medical evidence of record.\" R. at 5.

The Board erred in reaching this unsubstantiated conclusion. See
generally Smith (George) v. Brown, 8 Vet.App. 546, 553 (1996) (en banc)
(although \"the Board is not required to accept the medical authority
supporting a claim, it must provide its reasons for rejecting such
evidence and, more importantly, must provide a medical basis other than
its own unsubstantiated conclusions to support its ultimate decision\").
The conclusion of G.C. Prec. 5-99 was that conditions such as OE are
not, themselves, spina bifida. See G.C. Prec. 5-99 at 4. However,
section 1802 states that the \"\[s\]pina bifida conditions covered\" are
\"all forms and manifestations of spina bifida except spina bifida
occulta\". 38 U.S.C. § 1802 (emphasis added). The only such \"form\" or
\"manifestation\" excluded by the statute is \"spina bifida occulta\".
38 U.S.C. § 1802. The Board erred in its decision because it failed to
recognize that, by the nature of the plain language of the statute, the
range of spina bifida conditions covered is potentially not limited to
\"spina bifida\" per se, but could, potentially, include other \"forms
and manifestations of spina bifida except for spina bifida occulta\".
Ibid. By making the bare conclusion that \"forms and manifestations of
spina bifida\" means solely \"spina bifida\", the Board failed to give a
reasoned argument explaining why OE is not a \"form\" or
\"manifestation\" of spina bifida. Such an analysis is critically
important to the appellant here and to the Court\'s ability to review
this Board decision, especially in light of the fact that the Board
conceded that the record contained \"conflicting medical evidence\" (R.
at 5), apparently referring to the medical opinion from Dr. MacDonald
that OE is a \"form of spina bifida\" (R. at 189) and the medical
opinion from VA\'s Dr. Mather (R. at 198), which could be read as
suggesting that she considered OE a form or manifestation of spina
bifida. Also, the Board erred by failing to address in any respect
either the significance of the term \"manifestations\" as used in
section 1802 or the omission from G.C. Prec. 5-99 of any discussion of
this term. See Schafrath, supra.

The Court notes that it makes no statement as to whether OE is, in fact,
a form or manifestation of spina bifida. Such a conclusion is within the
purview of the Secretary in the first instance. Furthermore, any such
conclusion by the Court would necessarily entail factfinding. See Elkins
v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) (\"\[f\]act-finding in
veterans cases is to be done by the expert BVA, not by the Veterans
Court\"); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (noting
\"the general rule that appellate tribunals are not appropriate fora for
initial fact finding\"); Teten v. West, 13 Vet.App. 560, 564 (2000). We
do note, however, the appellant\'s argument that the Board failed to
address the appellant\'s other conditions and to determine whether any
of these is a form or manifestation of spina bifida. See Br. at 7. On
remand, the Board must address this question, just as it must address
the question whether OE is a form or manifestation of spina bifida.

C. Appellant\'s Arguments

As noted above, the appellant argues that G.C. Prec. 5-99 is invalid
because it ignores the plain language of section 1802, was promulgated
in contravention of the rulemaking requirements of the APA, and
\"ignor\[ed\] the Supreme Court\'s rules of statutory interpretation
that the agency must resolve interpretative doubt in favor of the
veteran\". Br. at 7-8. Because, as noted above, we are vacating the
Board decision and remanding the matter based on the Board\'s
reasons-or-bases error found in part II.B., above, it is not yet ripe
for us to consider the validity of G.C. Prec. 5-99, and the Court will
not address the appellant\'s arguments at this time. However, the Court
reiterates that that GC opinion does not contain any analysis as to the
meaning of \"all forms and manifestations\" in section 1802 and thus
provides the Board with no binding instruction regarding those terms to
apply to this case on remand in light of the medical evidence from Drs.
MacDonald and Mather in support of the claim. The Court also notes that
neither the Board decision in this case nor G.C. Prec. 5-99 makes
reference to Brown v. Gardner, 513 U.S. 115, 117 (1994) (citing King v.
St. Vincent\'s Hosp., 502 U.S. 215, 220-221 n.9 (1991)), in which the
U.S. Supreme Court, in interpreting 38 U.S.C. § 1151, noted \"the rule
that interpretive doubt is to be resolved in the veteran\'s favor\". The
Supreme Court also noted that \"\[a\]mbiguity is a creature not of
definitional possibilities but of statutory context\". Brown v. Gardner,
supra; cf. NORMAN J. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTJON §
45:09 (6th ed. 2000) (\"\[k\]nowing the purpose behind the statute could
help the court decode ambiguous text, but first there must be some
ambiguity\"). On remand, the Board should address this issue independent
from G.C. Prec. 5-99 but may wish to seek a further opinion from the
General Counsel.

III\. Conclusion

On the basis of the above analysis, the ROA, and the submissions of the
parties, the Court vacates the Board decision and remands the matter for
expeditious further development and issuance of a readjudicated decision
supported by an adequate statement of reasons or bases, see 38 U.S.C. §§
1802, 5107(a), 7104(a), (d) (1994 & Supp. V 1999); 38 U.S.C. §§ 5103
5103A, 5106, 5107,as amended by the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000); 66 Fed. Reg.
45,620, 45,630-32 (Aug. 29, 2001) (amending 38 C.F.R. § 3.159, as
applicable); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), all
consistent with this opinion and in accordance with section 302 of the
Veterans\' Benefits Improvements Act of 1994, Pub. L. No. 103-446, §
302, 108 Stat.4645, 4658 (found at 38 U.S.C. § 5101 note) (requiring
Secretary to provide for \"expeditious treatment\" of claims remanded by
BVA or the Court) \[hereinafter VBIA § 302\]; see Vargas-Gonzalez v.
Principi, 15 Vet.App. 222, 225-30 (holding that VBIA § 302 applies to
all elements of a claim remanded by Court or Board), and with all
applicable law and regulation. See Allday, 7 Vet.App. at 533-34. On
remand, the appellant will be free to submit additional evidence and
argument on the remanded claim in accordance with Kutscherousky v. West,
12 Vet.App 369, 372-73 (1999) (per curiam order) (concluding that an
appellant is entitled, until 90 days after Board mails postremand notice
to appellant, to submit additional evidence and argument or to request
hearing on appeal at which appellant may submit new evidence), and all
applicable law and regulation. The Court notes that a remand by this
Court or by the Board confers on an appellant the right to VA compliance
with the terms of the remand order and imposes on the Secretary a
concomitant duty to ensure compliance with those terms. See Stegall v.
West, 11 Vet. App. 268, 271 (1998). A final decision by the Board
following the remand herein ordered will constitute a new decision that,
if adverse, may be appealed to this Court only upon the filing of a new
Notice of Appeal with the Court not later than 120 days after the date
on which notice of the Board\'s new final decision is mailed to the
appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998).

VACATED AND REMANDED.

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