Citation Nr: 0814058 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-18 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rory E. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from April 1991 to October 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board notes that, in the August 2005 rating decision, the RO appears to have reopened the veteran's claim for service connection for a low back disorder and denied that claim on the merits. However, regardless of what the RO has done in cases such as this, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Although this claim does not involve a prior final denial by the Board but rather by the RO, the same statutory reopening requirements apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). Therefore, the Board is required by statute to review whether new and material evidence has been submitted to reopen the claim. Thus, the Board has recharacterized the issue on appeal as whether the appellant has submitted new and material evidence to reopen the previously denied claim for service connection for a low back disorder. 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 Reasons for Remand: To provide the veteran with a proper notice letter and to issue a supplemental statement of the case containing the applicable law and regulations. The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The United States Court of Appeals for Veterans Claims (Court) has held that the failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA would seek to provide and which evidence the claimant is to provide, is remandable error. In this case, it does not appear that the veteran has been adequately notified in connection with her application to reopen her claim for service connection for mechanical low back pain. In this regard, the record contains a letter dated in April 2005, which indicated what the evidence must show to establish a claim for service connection. However, the letter did not notify the veteran that new and material evidence was required to reopen a claim or what constituted new and material evidence. The Court has indicated that such specific notice is required to comply with the law. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Board notes that the April 2005 letter did not specifically inform the veteran of the reasons her previous claim for service connection for a back disorder was denied, nor what type of evidence would be necessary to substantiate her claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (VA must look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial). In addition, the veteran has not been provided with all of the laws and regulations pertinent to her application to reopen her claim for service connection for mechanical low back pain. In particular, the Board notes that the March 2006 statement of the case (SOC) did not contain the laws and regulations pertaining to new and material evidence, namely, 38 C.F.R. § 3.156(a). Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a letter in connection with her application to reopen her claim for service connection for mechanical low back pain. The letter should (1) inform her of the information and evidence that is necessary to substantiate the claim; (2) inform her about the information and evidence that VA will seek to provide; (3) inform her about the information and evidence she is expected to provide; and (4) ask her to provide any evidence in her possession that pertains to the claim. The veteran should be provided with the definition of new and material evidence in effect as of August 29, 2001, as well as informed as to what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial of her claim Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The SSOC should set forth all applicable laws and regulations pertaining to each issue, including the current version of 38 C.F.R. § 3.156(a) which has been in effect from August 29, 2001, and which is the version relevant to the claim in this case. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2007), 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).