Citation Nr: 0810001 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-18 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral keratoconus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from August 1979 to August 1982. This appeal to the Board of Veterans Appeals (Board) is from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board is remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND Before addressing the merits of the claim at issue, the Board finds that additional development of the evidence is required. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act (VCAA) notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim that complies with 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2007), and any applicable legal precedent. The RO's VCAA notice letter dated in May 2005, however, did not describe what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial on the merits. 38 C.F.R. § 3.156(a) (2007). That letter only made a vague statement that "[y]our claim was previously denied because the evidence of record is not sufficient to raise a reasonable doubt or otherwise warrant allowance of the appeal. Therefore the evidence you submit must relate to this fact." That statement failed to clarify the specific evidence needed to reopen the veteran's claim. Moreover, the RO has provided him no other VCAA notice letters that directly advise what specific evidence would be required to reopen his claim for service connection. The Board's March 1988 decision, which subsumes the prior RO decisions, is the final decision on the merits in this case. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2007). In that decision, the Board denied service connection for keratoconus because there was no evidence of this disorder during service or for many years thereafter. Therefore, to comply with Kent, the veteran should have been advised that in order to reopen this claim, he must submit competent evidence suggesting he had bilateral keratoconus during service and competent medical evidence otherwise suggesting a link between his current bilateral keratoconus and his military service. Therefore, he is entitled to this additional VCAA notice prior to deciding his appeal. Accordingly, this claim is REMANDED for the following development and consideration: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) that: (1) notifies him of the evidence and information necessary to reopen his claim (i.e., describes what new and material evidence is under the current standard); and (2) notifies him of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Specifically, advise him that in order to reopen his claim he must submit competent evidence of: a. bilateral keratoconus during his period of active military service, and b. a nexus (i.e., link) between his current bilateral keratoconus and his military service. 2. Then, after giving the veteran time to respond to this additional notice, readjudicate his petition to reopen his claim for service connection for bilateral keratoconus in light of any additional evidence received since the May 2006 statement of the case (SOC). If this claim is not granted to his satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim 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 or by the Court 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). _________________________________________________ KEITH W. ALLEN 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).