Citation Nr: 0814093 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 03-19 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the residuals of an injury to the back. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the residuals of an injury to the ribs. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the residuals of an injury to the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The RO has verified that the appellant served on active duty from August 1953 to March 1957. This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from an October 2002 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Chicago, Illinois, in which the RO declined to reopen any of the above-referenced claims. The appellant appealed the RO's decision to the Board. Thereafter, the RO referred the case to the Board for appellate review. The appellant testified at a personal hearing before the undersigned Veterans Law Judge in June 2005. In a December 2005 decision, the Board found that new and material evidence had not been submitted to reopen the appellant's claims; and therefore, denied the appellant's appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("CAVC" or "Court"). In a September 2007 memorandum decision, the Court vacated and remanded the Board's December 2005 decision. See September 2007 memorandum decision; October 2007 CAVC order. In light of this memorandum decision, the appeal has been returned to the Board for further review. Based upon the instructions set forth in that decision, the Board hereby REMANDS the appellant's claims to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND A review of the record with respect to the issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for (1) the residuals of an injury to the back, (2) the residuals of an injury to the ribs and (3) the residuals of an injury to the right knee discloses a need for further development prior to final appellate review. In this regard, the Board observes that the above-referenced claims were originally denied in a rating decision dated in September 1990. See September 1990 notice letter to the appellant. The appellant did not appeal that decision. Thereafter, the RO declined to reopen these claims on several occasions, the last of which occurred in April 2000. See rating decisions dated in April 1999, October 1999 and April 2000. The appellant did not file an initial appeal to the April 2000 rating decision until May 2001. In an October 2001 letter, the RO advised the appellant that it could not accept his appeal because it was untimely filed. The appellant did not challenge that decision. Accordingly, the April 2000 RO hearing officer decision subsequently became final. In July 2002, the appellant filed another request to reopen his claims with the RO. In the October 2002 rating decision on appeal, the RO declined to reopen any of the claims. The appellant subsequently and timely appealed this matter to the Board. In its December 2005 decision, the Board determined that new and material evidence sufficient to reopen the appellant's claims had not been submitted after determining that VA had complied with the notice requirements of the Veterans Claims Assistance Act ("VCAA") via a letter dated in July 2002. December 2005 BVA decision, pgs. 3-5. However, in its September 2007 memorandum decision, the Court concluded that the Board erred in issuing its December 2005 decision in that VA failed to satisfy its duty to notify the appellant of what was necessary to reopen and substantiate his claims. Specifically, the Court found that in the context of a claim to reopen a previously denied claim for service connection, the VCAA requires VA to look at the bases for the denial in the prior rating 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. September 2007 CAVC memorandum opinion, p. 4 citing Kent v. Nicholson, 20 Vet. App. 1 (2006). Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Kent v. Nicholson, supra; see also Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance), overruled, in part, on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was a specified basis for the last final disallowance). The Court found that the July 2002 VCAA letter sent to the appellant provided general notice to him rather than specific notice as to the evidence necessary to substantiate his claims. September 2007 CAVC memorandum opinion, p. 4. In this regard, the Court also observed that the July 2002 VCAA notice letter was defective since it did not inform the appellant of alternative forms of evidence, to specifically include lay evidence, he could submit in lieu of service medical records that were missing from the appellant's claims file and presumed to be destroyed. Id., pgs. 5-6. The Court determined that the lack of proper VCAA notice was prejudicial to the appellant in this case. As such, the Court vacated and remanded the Board's December 2005 decision for such notice. Id., pgs. 7-8. Therefore, in compliance with the Court's September 2007 memorandum decision and October 2007 order, the Board remands this case to the RO for the purpose of providing the appellant proper VCAA notice in accordance with the case of Kent v. Nicholson, supra. In remanding this appeal for appropriate VCAA notice, the Board observes that the notice obligation pursuant to Kent v. Nicholson does not modify the requirement that VA must provide a claimant notice of what is needed to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify the appellant of the evidence and information that is necessary to reopen his claims and also notify him of the evidence and information that is necessary to establish entitlement to each of his underlying claims. Accordingly, the case is REMANDED for the following action: The RO should ensure that all development contemplated by the VCAA is undertaken in terms of the appellant's new and material evidence service connection claims. See Kent v. Nicholson, supra. The appellant should be informed, based on the last final denial of his requests for service connection for (1) the residuals of an injury to the back, (2) the residuals of an injury to the ribs and (3) the residuals of an injury to the right knee of the specific information and evidence not of record (a) that is necessary to reopen his claims; (b) that VA will seek to obtain; and (c) that the appellant is expected to provide. In this regard, the appellant should be informed of the alternative forms of evidence that he can submit in support of his claim, to include lay evidence and buddy statements, that can be used to satisfy the elements required to establish service connection in lieu of evidence that may have been contained in his missing service medical records. In addition, the appellant should be advised to provide any evidence in his possession that pertains to the claims. Lastly, the appellant should be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and to comply with a Court order; and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant unless he is notified. 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. 2006). _________________________________________________ S. L. Kennedy 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).