Citation Nr: 0813612 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-31 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from May 1971 to August 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In March 2007, the Board denied the veteran's petition to reopen his claim of entitlement to service connection for defective hearing. The veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In December 2007, the parties submitted a Joint Motion for Remand and to Stay Proceedings. In a December 2007 order, the Court vacated the Board's March 2007 decision finding that the veteran was not provided notice which complied with the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). 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 In a September 1983 rating decision, the RO denied the veteran's original claim for service connection for defective hearing, based on a finding that there was no evidence he manifested a hearing loss as defined by VA regulations, as demonstrated by an August 1983 VA audiometry examination. Other evidence consisted of the veteran's service medical records which noted that an entrance examination reflected defective hearing in both ears. A retest noted slight defective hearing of the right ear. A separation examination noted a slight defective hearing of the right ear. The veteran was informed of the RO's decision, but he did not file a notice of disagreement. In a November 1990 decision, the Board noted that the veteran submitted evidence which reflected the presence of hearing loss diagnosed in February 1988, and denied the petition to reopen the claim, based on a finding that the evidence presented failed to establish a relationship between current hearing loss and any incident in the veteran's military service. This decision is final. 38 U.S.C. § 4004(b) (1988); 38 C.F.R. § 19.104 (1990). To successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. The VA has a duty to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The VA is also obligated to provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (holding that 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: 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). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. See Kent, supra. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. Id. VA must look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The veteran has never received such notice regarding this claim. Therefore, the claim must be remanded to provide the veteran with notice which complies with the provisions of the VCAA and the subsequent Court decisions noted above. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective notice under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); and Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice should explain the terms "new" and "material;" and explain the types of evidence that would be considered new and material. The notice should describe what evidence would be necessary to substantiate: the existence of defective hearing; a connection between the veteran's service and the current defective hearing (e.g., an opinion from an appropriate health care provider relating any current hearing loss to his period of military service) necessary to satisfy the element of the underlying claim which was found insufficient in the November 1990 Board decision; degree of the defective hearing; and effective date if service connection is granted. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); Kent and Dingess/Hartman, supra. 2. Then readjudicate the claim. If the claim continues to be denied, send the veteran and his attorney a supplemental statement of the case and give them time to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ 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).