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).