Citation Nr: 0811659	
Decision Date: 04/09/08    Archive Date: 04/23/08

DOCKET NO.  05-05 250	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to service connection for a left ankle condition.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

James A. DeFrank, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 2000 to July 
2004.

This matter is before the Board of Veterans' Appeals (Board) 
from a July 2004 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New 
York which, in part, denied entitlement to service connection 
for left ankle pain. 

During the pendency of this appeal the veteran's claims file 
was transferred to the jurisdiction of the Winston-Salem, 
North Carolina RO which has certified the case for appellate 
review. 

Per the veteran's request in his VA Form 9 (formal appeal), a 
hearing at the Board's central offices in Washington, D.C. 
was scheduled for May 2005.  However, in an April 2005 
letter, the veteran indicated that he would not be able to 
attend the hearing and did not wish to be in attendance at 
the hearing. 

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 Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).  

Proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(3) that the claimant is expected to provide; and (4) must 
ask the claimant to provide any evidence in her or his 
possession that pertains to the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); C.F.R. § 3.159(b)(1) (2007).  VCAA notice should 
be provided to a claimant before the initial unfavorable 
agency of original jurisdiction (AOJ) decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Court has also held that that the VCAA notice 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include:  (1) veteran status; (2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.   
Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006).  

Failure to provide pre-adjudication notice as to the evidence 
needed to substantiate the claim is remandable error.  
Overton v. Nicholson, 20 Vet App 427 (2006).

The veteran has not been provided with VCAA notice in regard 
to his left ankle claim.

Accordingly, the case is REMANDED for the following action:

1.  A VCAA notice letter should be sent 
to the veteran explaining the evidence 
need to substantiate the claims; the 
evidence that VA will undertake to 
obtain, the evidence that he is expected 
to provide, and request that he provide 
any and all relevant evidence currently 
in his possession.  

The veteran should also be notified that, 
in cases where service connection is 
granted, both a disability evaluation and 
an effective date for that evaluation 
will be granted. 

2.  Then re-adjudicate the claim.  If any 
claim on appeal remains denied, issue a 
supplemental statement of the case before 
returning them to the Board, if otherwise 
in order.


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. 2007).



_________________________________________________
Mark D. Hindin
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).