Citation Nr: 0814571 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-07 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a left leg injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from August 1962 to July 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In a February 2008 rating decision the RO found that the October 1976 rating decision which denied entitlement to service connection for residuals of a left leg disorder was not clearly and unmistakably erroneous. The veteran was notified of that decision, however, he has not appealed. The appellant is reminded that he has until February 14, 2009, to file a notice of disagreement with the RO to the February 2008 rating decision. REMAND In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims held that the Veterans Claims Assistance Act of 2000 requires, in the context of a claim to reopen, that 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. Here, the RO issued an April 2005 letter stating that the appellant's claim was previously denied because the disorder was not shown by the evidence of record, and because the service medical records did not show any treatment during service for a left leg condition. This mischaracterizes the prior October 1976 rating decision as well as the service medical records themselves. That is, the October 1976 rating decision acknowledged the fact that the veteran's July 1965 separation examination noted a left leg disorder. Further, a review of that July 1965 examination report shows that the veteran was indeed treated for a left leg disorder at Fort Lewis, Hospital in 1963. Accordingly, because the April 2005 notice fails to comply with the requirements of Kent further development is in order. Further development is also in order given the fact that no records from Fort Lewis, Washington Medical Center are currently available, and it does not appear that they have been specifically requested. Accordingly, the case is REMANDED for the following action: 1. The RO must provide the veteran the specific notice required in a claim to reopen. The notice must include the definition of new and material evidence, and notice as to what specific type of evidence would be considered new and material since the October 1976 rating decision. The veteran must further be provided notice of the evidence necessary to establish service connection, notified who is responsible for securing that evidence, and notified of his duty to submit any evidence in his possession. Finally, the veteran must be provided notice how disability ratings and effective dates are assigned. The veteran and his representative should have the opportunity to respond. 2. The RO should contact the National Personnel Records Center and request that they provide any and all medical records pertaining to treatment at Fort Lewis Medical Center in 1963. An additional request for those records should also be made directly to the Fort Lewis Medical Center. 3. Thereafter, the claim must be readjudicated by the regional office. In their readjudication the RO should address whether the appellant has been prejudiced by the fact that full VCAA notice was not provided until 2008 If the claim remains denied the RO must issue a supplemental statement of the case, and the appellant an opportunity to respond. 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 particularly includes medical evidence which links a current left leg disorder to the appellant's documented in-service injury. 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). _________________________________________________ DEREK R. BROWN 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).