Citation Nr: 0814274 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 03-26 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral foot strain. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left ankle strain. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and T.W. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from August 1972 to July 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2002 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In December 2003, the veteran testified at a video conference hearing before a Veterans Law Judge designated by the Chairman of the Board to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 2002). A copy of the transcript of that hearing is in the claims file. That judge has since retired from the Board and the veteran was offered the opportunity for a new hearing. He did not request a new hearing in response to a letter sent in November 2005. Therefore, the Board will not schedule the veteran for another hearing. The case was remanded to the RO in June 2006. Because the terms of the remand were not satisfied, another remand is required. The Board notes that RO compliance with this remand is not discretionary, and that if the RO fails to comply with the terms of this remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). A statement from the veteran received in January 2006 indicates the veteran's desire to file a claim for a total disability rating based on individual unemployability (TDIU). This issue is again referred to the RO for appropriate development and adjudication. 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 Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The Board remanded the case to the agency of original jurisdiction in June 2006 to have the agency of original jurisdiction issue Kent-compliant VCAA notice to the veteran concerning his claims to reopen. VA still has not sent Kent- compliant VCAA notice to the veteran with respect to his attempt to reopen claims for service connection. VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. Specifically, the RO should inform the veteran of what is necessary for his claims to be granted, as well as ensure that all other appropriate actions under the VCAA have been taken. Per Kent v. Nicholson, 20 Vet. App. 1 (2006), the RO must ensure that the veteran is provided correct notice of what is needed for a claim to be reopened, including informing him of the specific basis for any previous denial, as well as informing him of what the terms "new" and "material" mean under the law and regulations. The RO's June 2006 attempt at informing the veteran of the specific basis for the previous denial was: "Your claim was previously denied because there is no medical evidence to establish you're your claimed service-connected disabilities." This sentence is inadequate and uninformative. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all VCAA notice obligations with respect to the veteran's claims have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. This should specifically include notification to the veteran telling him what is necessary for his claim to be granted, what evidence he must obtain and what evidence the RO will obtain, as well as informing him of the need to submit all available evidence. The RO should specifically inform him of the criteria for reopening a claim including specifically defining what "new" and "material" mean, as well as informing him of the specific basis of the previous denials of his claims for service connection for a bilateral foot strain, a left ankle strain, diabetes mellitus, and left ear hearing loss. See Kent v Nicholson, 20 Vet. App. 1 (2006). 2. Thereafter, readjudicate the veteran's pending claim in light of additional evidence added to the record since the October 2007 supplemental statement of the case. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ L. M.BARNARD Acting 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).