Citation Nr: 0811047 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 03-29 292A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hemorrhoids. 2. Entitlement to service connection for a kidney and bladder disorder. 3. Entitlement to compensation benefits for a kidney and bladder disorder under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from November 1970 to August 1972, with subsequent service in the Army Reserve. The veteran's appeal as to the issues listed above arose from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. In January 2002, the RO denied the veteran's claim that new and material evidence had been presented to reopen a claim for a kidney and bladder disorder under the provisions of 38 U.S.C.A. § 1151. The veteran appealed and in June 2004, and January 2005, and the Board remanded the claim for additional development. In the Board's June 2004 Remand, it determined that the issue of service connection for a kidney and bladder disorder had been raised, and referred this issue to the RO for appropriate action. In November 2005, the Board reopened the claim for a kidney and bladder disorder under the provisions of 38 U.S.C.A. § 1151, and remanded the claim, together with the issue of service connection for a kidney and bladder disorder, for additional development. In February 2006, the RO denied a claim for service connection for hemorrhoids. In June 2004, the veteran was afforded a hearing before John J. Crowley, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The veteran was also afforded a videoconference hearing in May 2002, before a Veterans Law Judge who is no longer with the Board. 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 has determined that additional development is necessary prior to completion of its appellate review. The undersigned apologizes for the delay in the full adjudication of this case. With regard to the claims for a kidney and bladder disorder, in November 2005, the Board remanded the claims for additional development. The Board directed that the veteran and his representative be given notification of the duty to assist that was in accordance with 38 U.S.C.A. § 5103(a), and any other applicable legal precedent. The Board further directed that following an appropriate time period, the RO should readjudicate the claims, and indicated that if the claims were not resolved favorably, that the RO should issue the veteran and his representative a supplemental statement of the case. It appears that in December 2005, proper notification in compliance with 38 U.S.C.A. § 5103(a) was sent to the veteran. However, there is nothing to show that the RO ever readjudicated the claims, or issued a supplemental statement of the case. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. The Court further indicated that it constitutes error on the part of the Board to fail to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In addition, with regard to all claims on appeal, since the Board's November 2005 Remand, a great deal of medical evidence was received by the RO, and has been associated with the claims files. Although some of this evidence was duplicative of that which was previously associated with the claims files, some of it was new. This evidence was forwarded to the Board in August 2007, without a waiver of RO review. Additional evidence was submitted directly to the Board, also without a waiver of RO review, which was received in December 2007. A supplemental statement of the case reflecting review of the new evidence has not been issued by the RO. Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2007). In this case, the veteran did not submit a waiver of initial RO review with any of the additional evidence. Given the foregoing, on remand, the RO must review the new evidence and, if the claims remains denied, include such evidence in a supplemental statement of the case. Id. Finally, with regard to the issue of whether new and material evidence has been received to reopen a claim for service connection for hemorrhoids, the United States Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103 applies to claims to reopen based on submission of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). Under Kent, VA must notify the veteran of what constitutes "material" evidence in the context of his particular claim to reopen. Id. VA should tell the veteran the basis for the previous denial and what the evidence must show in order to reopen his particular claim. Additionally, VA must notify the veteran of the meaning of "new" evidence. Id. In this case, the RO sent the veteran a duty to assist letter in December 2005 that discussed the criteria for reopening a new and material claim. However, it appears that the claims files were located at the Board when this letter was sent, and the RO was unable to cite the date of the most recent and final denial of the claim. In summary, it is unclear whether the December 2005 duty to assist letter satisfies the requirements of Kent. Under the circumstances, the veteran should be provided with a notice conforming to Kent and apprised of the proper standard for new and material evidence for a claim. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective VCAA notice letter, with respect to his claim to reopen a previously denied claim for service connection for hemorrhoids. This notice should include the proper standard for new and material evidence, and an explanation of what the evidence must show to reopen this veteran's claim, as outlined in Kent v. Nicholson, 20 Vet. App. 1 (2006). Again, VA must tell the veteran the basis for the previous denial and what the evidence must show in order to reopen his particular claim. 2. Thereafter, readjudicate the veteran's claims. If any of the decisions remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the 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. 2007). _________________________________________________ JOHN J. CROWLEY 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).