Citation Nr: 0810726 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-10 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES Whether new and material evidence has been received to reopen a claim for entitlement to service connection for post- traumatic stress disorder (PTSD). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin condition due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from August 1968 to March 1970 and from September 1974 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which determined that new and material evidence had not been received to reopen the veteran's claims for entitlement to service connection for PTSD and chloracne. Thereafter, jurisdiction of the case was transferred to the RO in Wilmington, Delaware. 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 When the case was last before the Board in February 2006, it was remanded for a hearing with a Decision Review Officer (DRO). Thereafter, in an August 2006 letter, the RO informed the veteran that a DRO hearing had been scheduled for October 6, 2006. Unfortunately, the letter was sent to the wrong address. Consequently, the veteran did not appear for the hearing and the case was returned to the Board. The veteran never withdrew his hearing request and in the February 2007 informal hearing presentation, the veteran's representative indicated that the veteran still wishes to attend a DRO hearing. Therefore, the case must again be remanded in order to schedule a hearing. Additionally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) held that 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. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the July 2003 letter did not provide sufficient information to comply with Kent. Thus, the RO should send the veteran and his representative a corrective VCAA letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and includes a description of the evidence needed to substantiate the claim for service connection for PTSD and chloracne based on new and material evidence by informing him of the elements required to establish service connection that were found insufficient in the prior denial. In this case, the veteran's claim was originally denied by the Board in 1982 as the evidence was against a finding that he suffered from PTSD. His claim for a skin condition including chloracne was denied in 1997 because there was no evidence of a chronic skin condition while on active duty and no evidence of chloracne within one year from last exposure to herbicides. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to whether new and material evidence has been submitted sufficient to reopen the veteran's previously denied claims for service connection for PTSD and a skin condition due to herbicide exposure. The notice should also address what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denials, as outline by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. The RO should schedule the veteran for a hearing before a Decision Review Officer at the RO, and notify the veteran of such at the correct address. 3. After completing any additional development deemed necessary, the RO should readjudicate the claims on appeal. If the claims are denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ K. A. BANFIELD 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).