Citation Nr: 0813811 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 02-12 309 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for hypertension. 2. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a right inguinal hernia. 3. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for color blindness. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from January 1953 to January 1955. He also had service from January 1955 to May 1966, but this period of service resulted in a dishonorable discharge and is not creditable service for VA benefits purposes. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2007). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 decision of the VARO in Waco, Texas, that denied entitlement to the benefits sought. The veteran appealed the denial action and by decision dated in May 2004, the Board determined that the veteran's application to reopen the claims for service connection remained denied with regard to each issue in the absence of new and material evidence. The veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2007 memorandum decision the Court vacated the May 2004 Board decision and remanded the matter for readjudication consistent with the decision. Accordingly, the case is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the veteran should further action be required. REMAND In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The notice letters of record sent to the veteran do not comply with the new requirements under Kent. The veteran was not provided with a specifically tailored notice explaining what is needed to reopen his claims for service connection in light of any prior deficiency or deficiencies in the claims. To ensure compliance with due process requirements, the case is therefore REMANDED for the following: 1. VA should send the veteran a corrected VCAA notice letter under 38 U.S.C.A. § 5103(a) that (1) notifies him of the evidence and information necessary to reopen the claims for service connection for hypertension, color blindness and a right inguinal hernia; (2) notifies him of the reasons for the April 2001 Board denial; and (3) notifies him of what specific evidence would be required to substantiate the element or elements needed to grant the service connection claims (that is, medical evidence establishing that any current hypertension, right inguinal hernia, and/or color blindness is related to his active service). For example, the veteran should be informed of alternative forms of evidence that he could submit to demonstrate that the symptoms of his claimed disabilities first manifested themselves during service, such as buddy lay statements from individuals who served with him and knew him during service or in the several years following service discharge. 2. If the veteran responds, VA should assist him in obtaining any additional evidence identified by him following the correct procedures set forth at 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe any further action to be taken. 3. After completing the requested actions, and any additional notification and development deemed warranted, VA should readjudicate the petition to reopen the claims for service connection in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, VA must furnish the veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this remand is to afford due process. It is not the Board's intent to apply whether the benefits requested should be granted or denied. The appellant need take no action unless otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ V. L. JORDAN 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).