Citation Nr: 0813999 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-06 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbosacral spine disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from August 1971 to June 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2004 by a Department of Veterans Affairs (VA) Regional Office (RO). 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 In this case, the RO denied the veteran's initial claims of entitlement to service connection for a back condition and a bilateral knee condition in a rating decision dated September 1993. The veteran was notified of this decision in a letter dated September 27, 1993 and did not appeal. Thus, this decision became final. The veteran subsequently sought to reopen his claims of entitlement to service connection for a back condition and a bilateral knee condition in March 1995. The RO denied the veteran's claims in a rating decision dated March 1996 on the grounds that the veteran failed to submit new and material evidence. The veteran was notified of this decision in a letter dated April 4, 1996 and did not appeal. Thus, this decision became final. In August 2003, the veteran again sought to reopen his claims of entitlement to service connection for a back condition and a bilateral knee condition. Based on evidence of record, the RO rephrased the issues on appeal as whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for spondylitic changes with disc space narrowing at L5-S1of the lumbosacral spine and disabilities of the bilateral knees. The RO denied the veteran's claims in a rating decision dated June 2004 on the basis that the veteran failed to submit new and material evidence. The veteran was notified of this decision in a letter dated June 7, 2004 and timely perfected his appeal. However, the Board's review of the claims file reveals that additional action is required for both issues pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) established significant new requirements with respect to the content of the duty-to- inform notice which must be provided to a veteran who is petitioning to reopen a claim. The Court held that VA must notify the veteran of the evidence and information that is necessary to reopen the claim and VA must notify the veteran of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the veteran. In addition, the Court held that the VCAA requires, in the context of a claim to reopen, the Secretary to 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. The veteran was provided with a VCAA notification letter, but it did not meet the requirements set forth in Kent as it did not explain the element or elements required to establish service connection that were found insufficient in the previous denials. The notice letter also did not explain, in terms of his specific case, the evidence which would overcome the prior insufficiencies. Therefore, a remand is required. Accordingly, the case is REMANDED for the following action: 1. The RO should send a duty-to-inform notice regarding the request to reopen the claims of service connection for a claimed lumbosacral spine disability and a claimed bilateral knee disability. The notice letter must describe the elements necessary to establish service connection for the disabilities and must describe what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denials. The notice letter should also explain, in terms of his specific case, the evidence which would overcome the prior insufficiencies. The veteran should then be afforded an appropriate period of time to respond. The RO should also attempt to obtain any additional evidence identified as relevant by the veteran during the course of the remand, provided that the veteran completes the required authorization forms. 2. Thereafter, the RO should readjudicate the veteran's claims. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. The veteran 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ S.S. TOTH 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).