Citation Nr: 0809746 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-04 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a left leg injury. 2. Whether new and material evidence was received to reopen a claim for entitlement to service connection for residuals of pneumonia. REPRESENTATION Appellant represented by: Sean Kendall, Esq. ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant served in the US Army Reserves from December 1976 to June 1977 with five months of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's application to reopen his previously denied claims of entitlement to service connection for residuals of a left leg injury and pneumonia for failure to submit new and material evidence. The veteran appealed the October 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2007 Order, the Court granted a Joint Motion for Remand filed by the parties and vacated the Board's October 2006 decision in part. The case was thereafter returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran is seeking service connection for a left leg injury and residuals of pneumonia. These claims were denied on the merits in a prior final rating decision dated in February 1978. Since the time of that decision, the veteran has applied to reopen his claims for a de novo review on the merits. In order for the claims to be reopened, the veteran is required to submit new and material evidence that is pertinent to his claims of entitlement to service connection for a left leg injury and residuals of pneumonia. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court addressed directives consistent with the Veterans Claims Assistance Act of 2000 (VCAA) with regard to new-and- material-evidence claims. The Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The August 2007 Joint Motion for Remand concluded that the veteran has not received the proper VCAA notice as required by Kent. Although the RO provided correspondence to the veteran in July 2004 and August 2004, neither letter provided the bases for the previous denial of VA compensation for a left leg injury or residuals of pneumonia in the prior final rating decision, nor do they adequately notify the veteran of the specific evidence and information that is necessary to reopen his claims for service connection for these disabilities. Therefore, the veteran should be provided with a proper notice letter that complies with the Court's holding in Kent. In light of the concerns expressed in the Joint Motion for Remand, the Board finds that further development of the claim is warranted. Accordingly, the case is remanded to the RO for the following action: 1. The RO should send the veteran a corrective VCAA notice, as defined by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), as it pertains to new and material evidence to reopen the claims for service connection a left leg injury and residuals of pneumonia. The veteran should be informed of the specific information and evidence not of record (1) that is necessary to reopen his claims for service connection for a left leg injury and residuals of pneumonia, (2) that VA will seek to obtain, and (3) that he is expected to provide. The veteran should also be advised to provide any evidence in his possession that pertains to the claims. 2. Thereafter, the RO should readjudicate the issues of whether new and material evidence was submitted to reopen previously denied claims of entitlement to service connection for a left leg injury and residuals of pneumonia. If the benefits sought remain denied, the veteran must be provided with a Supplemental Statement of the Case and an appropriate period of time must be allowed for response. The case should then be returned to the Board for appellate review. 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 Supp. 2005). _________________________________________________ RENÉE M. PELLETIER 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).