Citation Nr: 0812517 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-00 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a back injury. 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a neck injury. 3. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a right hip injury. 4. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a left hip injury. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. WITNESSES AT HEARING ON APPEAL Veteran and J.M. ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1975 to December 1976. He served in the Army National Guard of South Carolina from February 1977 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. ORDER TO VACATE The Board denied the claims on appeal by a March 2006 decision. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on an October 2007 Joint Motion for Court Remand (Joint Motion), the Court remanded this appeal for development in compliance with the Joint Motion. A December 27, 2007 letter was sent to the veteran and his attorney in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. The veteran did not submit additional evidence. VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2007). Here, the Court remanded the Board's decision in this matter, finding that VA had not met its statutory and regulatory duty to notify. 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). Therefore, the Board finds that its decision of March 10, 2006 failed to provide the veteran due process under the law. Accordingly, in order to prevent prejudice to the veteran, the March 2006 decision of the Board must be vacated in its entirety, and a new decision must be entered as if the March 2006 decision by the Board had never been issued. ORDER The March 10, 2006 Board decision is vacated. REMAND The veteran is seeking to reopen previously denied claims of entitlement to service connection for residuals of a back injury, residuals of a neck injury, and residuals of a bilateral hip injury. VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a substantially complete application for benefits, VA must notify the veteran of what information or evidence is needed in order to substantiate the claim and it must assist the veteran by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in new and material evidence cases, the veteran must be notified of the elements of service connection on which the claim was previously denied, and be given notice that he must submit evidence specifically relating to such elements. The Board finds that the RO failed to provide the veteran with adequate notice concerning his claims on appeal herein. Specifically, the RO's July 2002 letter did not provide the veteran with notice of the proper standard that governs his claims to reopen and did not provide notice of the elements of service connection on which his claims were previously denied. In addition, in both the September 2002 rating decision and in the December 2003 statement of the case, the RO applied the incorrect version of the regulation defining new and material evidence. In August 2001, there was a regulatory change with respect to new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. Because the veteran filed his request to reopen his claims after August 2001, the current version of the regulation is applicable in this case. The RO's July 2002 letter provided the veteran with the law pertaining to new and material evidence which was in effect prior to August 29, 2001, and did not provide the veteran with the current version of the law, which is applicable to his claims. In addition, the RO's July 2002 letter did not provide the veteran with notice of the elements of service connection on which his claims were previously denied, including notice that he must submit evidence directly relating to those elements, in compliance with Kent. Moreover, in the September 2002 rating decision and the December 2003 statement of the case, the RO applied the pre- August 29, 2001 regulatory definition of new and material evidence. Accordingly, remand is required so that the RO may provide such notice and readjudicate the veteran's claims under the proper version of the regulation pertaining to new and material 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). This 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) and must provide the veteran with notice of the current version of the regulation on new and material evidence. 2. After completing the above action, and any other development as may be indicated by any response received, the claims on appeal must be readjudicated. When readjudicating the claim, the RO must apply the current version of the regulation on new and material evidence. Thereafter, if any of the veteran's 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 Department of Veterans Affairs