Citation Nr: 0809793 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-23 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disorder. 2. Entitlement to a temporary total rating based on the need for convalescence following left knee surgery. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The appellant had active service from April 1981 to December 1988. He also had a period of active service from February 1991 to August 1991, which terminated in an other than honorable discharge determined to be of a character precluding VA benefits based on that period. 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 Board notes that the legal standard of what constitutes "new and material" evidence was recently amended. This amendment is applicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001. 38 C.F.R. § 3.156(a) (2007). The appellant filed the application to reopen the claim in August 2002. While the April 2004 statement of the case cites to the regulation as amended, the July 2007 supplemental statement of the case cites to the legal standard of what constitutes new and material evidence in effect prior to August 29, 2001. The Board notes that the December 2006 supplemental statement of the case cites only to 38 C.F.R. § 3.104, and to the extent that service connection was addressed, there has been no determination that new and material evidence has been submitted and the claim has not been reopened. The Board notes that the January 2008 correspondence from the appellant's representative cites to the legal standard of what constitutes new and material evidence in effect prior to August 29, 2001. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In addition, the October 2007 VCAA notification letter states the following: You were previously denied service connection for left knee disorder. You were originally notified of the decision on August 4, 1994 and subsequently on October 23, 2002. The appeal period for that decision has expired and the decision is now final. The Board notes that the last prior final denial in regard to service connection for a left knee disorder is the October 1999 Board decision, in which the claim was denied based on a finding that there was no competent evidence showing a left knee disorder was related to service. When the Board has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104. In addition, the appellant has perfected an appeal of the October 2002 rating decision, and thus, that decision is not final. In light of the above, the Board finds that this case must be remanded for adequate VCAA notification. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board notes that the issue of entitlement to a temporary total rating based on the need for convalescence following left knee surgery is inextricably intertwined with the issue of whether new and material evidence has been presented to reopen the claim of entitlement to service connection for a left knee disorder and is deferred pending further development. Accordingly, the case is REMANDED for the following action: 1. The record should be reviewed and VA should ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). A notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice should include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims(s) on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice should include specific notice of why the claim was previously denied in October 1999 and what constitutes material evidence for the purpose of reopening this claim. See Kent, supra. 2. In light of the above, the claims should be readjudicated. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the appellant afforded a reasonable opportunity to respond thereto. 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). These claims 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). _________________________________________________ MILO H. HAWLEY 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).