Citation Nr: 0813651 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-08 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to November 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania which determined that new and material evidence had not been received regarding claims for service connection for left ankle and left knee disabilities. In June 2007, the Board determined that the issue concerning service connection for a left ankle disability should be reviewed on a de novo basis, and the issues on the cover page were remanded for additional development. After some development, the case was returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The issues on the cover page were remanded by the Board in June 2007. A remand by the Board "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268 (1998). As explained below, the June 2007 Board remand was not complied with fully. As such, the case must once again be returned to the AMC/RO for further development. In June 2007, the Board remanded the veteran's claim that new and material evidence had been received by VA sufficient to reopen his claim for service connection for a left knee disability so that the veteran could be given proper notification as is required by the Veterans Claims Assistance Act of 2000 (VCAA), including specific notice for claims based on new and material evidence as described in Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran was sent a notification letter in June 2007. The notification letter sent in June 2007 did not properly notify the veteran regarding his claim based on new and material evidence. The June 2007 letter incorrectly stated that the veteran's claim for service connection for a left knee disability was previously denied because his condition was described as an acute condition which resolved prior to discharge without chronic residuals. Such description was given about the veteran's ankle in a May 1985 rating decision. The veteran's claim for service connection for a left knee disability was denied by an August 1985 rating decision because no injury in service had been shown. This decision was upheld by a December 1985 Board decision which also held that left knee arthritis was not shown within one year after the veteran's separation from service. See 38 C.F.R. § 3.307, 3.309 (2007). As the June 2007 letter was deficient as to notice for the veteran's left knee disability claim, another VCAA notification letter should be issued. The Board notes that the legal standard of what constitutes "new and material evidence" was amended in August 2001 and applies prospectively to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (August 29, 2001) (codified at 38 C.F.R. § 3.156(a) (2007)). The veteran's current claim was filed in November 2003. The June 2007 notification letter correctly notified the veteran about the current regulations pertinent to claims based on new and material evidence. However, the December 2007 supplemental statement of the case (SSOC) erroneously stated that the former new and material evidence regulations applied to the veteran's claim. The statements in the SSOC should be disregarded by the veteran. The veteran should be sent another notification letter that properly explains the definition of new and material evidence (for claims filed on or after August 29, 2001) and that describes what evidence would be necessary to substantiate that element or elements required to establish service connection for a left knee disability that were found insufficient in the previous denial. Specifically, he should be told that his claim for service connection for a left knee disability was previously denied because the evidence did not show that a left knee disability was incurred during service or that arthritis of the left knee manifested to a compensable degree within one year after his separation from active military service. The notice letter must also describe the elements necessary to establish service connection, and notify the veteran of the type of evidence that VA will seek to provide, inform the veteran of the type of evidence that he is expected to provide, and request that he provide any and all relevant evidence currently in his possession. Turning to another matter, in June 2007 the Board remanded the veteran's claim of entitlement to service connection for a left ankle disability in part so that an appropriate VA examination could be conducted to determine the nature and etiology of the left ankle disability. The veteran was afforded a VA examination in November 2007; however, the claim was never readjudicated by the AMC/RO. Instead, the December 2007 SSOC only addressed the issue of new and material evidence in regard to the veteran's claim for service connection for a left knee disability. Accordingly, the case is REMANDED for the following action: 1. A VCAA notification letter should be sent to the veteran that properly explains the definition of new and material evidence (for claims filed on or after August 29, 2001) and describes what evidence would be necessary to substantiate that element or elements required to establish service connection for a left knee disability that were found insufficient in the previous denial. Specifically, he should be told that his claim for service connection for a left knee disability was previously denied because the evidence did not show that a left knee disability was incurred during service or that arthritis of the left knee manifested to a compensable degree within one year after his separation from active military service. The notification letter must also describe the elements necessary to establish a claim for service connection, and notify the veteran of the type of evidence that VA will seek to provide, inform the veteran of the type of evidence that he is expected to provide, and request that he provide any and all relevant evidence currently in his possession. The veteran should be notified that, in cases where service connection is granted, both a disability evaluation and an effective date for that evaluation will be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). An appropriate amount of time should be allowed for response. 2. The veteran's entire file should then be reviewed and both of his claims readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate SSOC and afforded the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL D. LYON 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).