Citation Nr: 0812323 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 00-22 502A ) 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 submitted to reopen the claim of entitlement to service connection for residuals of a fractured right femur. 2. Entitlement to service connection for depression, to include as due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from March 1982 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). The claims file is in the jurisdiction of the VA Regional Office in No. Little Rock, Arkansas. By a November 3, 2005 decision, the Board denied the veteran's claims to reopen his claim of entitlement to service connection for residuals of a fractured right femur and for entitlement to service connection for depression. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on an October 2007 Memorandum Decision, the Court vacated and remanded this appeal for further development. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The veteran is seeking service connection for residuals of a fractured right femur. When the veteran filed his claim in February 2000, it was treated as a claim to reopen a previously denied claim for service connection based on a December 1984 rating decision denying service connection for residuals of a fractured right femur. The veteran now claims that he did not receive notice of the RO's December 1984 decision denying his initial claim for service connection because the RO sent the notice letter to an incorrect address. The veteran believes that his current claim should be treated as a claim for service connection and not as a claim to reopen because the RO's December 1984 rating decision was not final, as he was not notified of the decision. The veteran is also seeking service connection for depression, to include as due to his service-connected disabilities. He contends that his service-connected disabilities of left ear hearing loss and tinnitus caused or contributed to his current depression. I. New and Material Evidence Claim In a December 1984 rating decision, the RO denied the veteran's initial claim for entitlement to service connection for residuals of a fractured right femur. The veteran's claims file reflects that the RO sent notice of the December 1984 rating decision to the veteran that same month at a [redacted] Street address in Houston, Texas. The veteran's October 1983 claim form listed a [redacted] address in Houston, Texas as his current address. Although there is one computer printout in the veteran's claims file noting a [redacted] Street address, there is no correspondence from the veteran or his representative indicating that the veteran lived at the [redacted] Street address. The veteran now claims that he has never lived at the [redacted] Street address, that he did not receive notice of the December 1984 rating decision, and that his claim for service connection for residuals of a fractured right femur should be treated as a claim for service connection and not as a claim to reopen a previously denied claim. The Board finds that remand is necessary in order for the RO to conduct further factual development to determine whether the [redacted] Street address can be shown to have been the veteran's address of record at the time that the December 1984 rating decision was mailed to him. If the [redacted] Street address cannot be shown to have been the veteran's address of record at that time, the RO must, after sending the veteran the proper VCAA notice, readjudicate the veteran's claim on the merits considering all of the current evidence of record. II. Service Connection Claim In August 2003, the veteran underwent a VA mental disorders examination, which diagnosed depressive disorder, not otherwise specified and opined that the veteran's depressive disorder was not related to his service-connected hearing loss. However, the August 2003 VA examiner did not review the veteran's claims file before preparing the opinion. Accordingly, remand is required for a new VA mental disorders examination addressing the etiology of the veteran's depression. In addition, the veteran has submitted additional evidence to the Board in support of his claim for service connection for depression without a waiver of RO consideration. Accordingly, remand is also required so that the RO may consider this evidence. Accordingly, the case is remanded for the following action: 1. The RO must provide notice to the veteran of what information or evidence is needed in order to substantiate his claims on appeal, and it must assist the veteran by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). If the RO confirms that the veteran's address of record at the time of the December 1984 rating decision was the [redacted] Street address and therefore determines that the veteran's claim for service connection for residuals of a fractured right femur is, in fact, a claim to reopen, then the notice must also comply with the requirements contained in Kent v. Nicholson, 20 Vet. App. 1 (2006) and 38 C.F.R. § 3.156(a) (2007). 2. The RO must conduct factual development to determine the reason that the December 1984 rating decision was sent to the veteran at the [redacted] Street address and whether the [redacted] Street address can be shown to have been the veteran's address of record at the time of the December 1984 rating decision. If the [redacted] Street address cannot be shown to have been the veteran's address of record at that time, the RO must readjudicate the veteran's claim for service connection for residuals of a fractured right femur on the merits, considering all of the evidence currently of record. If the [redacted] Street address can be shown to have been the veteran's address of record at the time of the December 1984 rating decision, the RO must continue to treat the veteran's claim as a claim to reopen, and must issue a supplemental statement of the case to that effect. All documentation confirming or denying that the [redacted] Street address was the veteran's address of record at the time of the December 1984 rating decision must be associated with the claims file. 3. The RO must afford the veteran a VA mental disorders examination to determine the current existence and etiology of any depression found. The claims file must be made available to and thoroughly reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Thereafter, based upon review of the service and post-service medical records, the examiner must provide an opinion as to whether any depression found is related to the veteran's active duty military service. The examiner must also state whether any diagnosed depression is due to or aggravated by the veteran's service-connected left ear hearing loss or tinnitus. A complete rationale for all opinions must be provided. If such a determination cannot be made without resort to speculation, the examiner must specifically state this. The report must be typed. 4. The RO must notify the veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated based on the current evidence of record. If the claims remain denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).