Citation Nr: 0814674 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-23 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizophrenia. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from March 1968 to February 1970. By rating action dated in July 1996, the Regional Office (RO) denied service connection for schizophrenia. The veteran was notified of this determination and of his right to appeal by a letter dated the following month, but a timely appeal was not received. In a December 1999 rating decision, the RO denied service connection for PTSD. He was notified of his appellate rights by letter dated later that month, but a timely appeal was not filed. The veteran subsequently sought to reopen his claims for service connection for schizophrenia and for PTSD. By rating decision in December 2002, the RO concluded that new and material evidence had not been received, and the claims remained denied. This determination was upheld by the Board of Veterans' Appeals (Board) in an August 2005 decision. The veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court) which, in a September 2007 memorandum decision, vacated the Board's determination. 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 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court essentially stated that VA must notify a claimant of the evidence and information that is necessary to reopen a claim and of what evidence and information is necessary to establish entitlement to the underlying claim of the benefits sought by the claimant. The Court further stated 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. A review of the claims file reveals that notice complying with Kent has not been furnished to the veteran. This should be accomplished on remand. Moreover, the veteran was not furnished with notice of the evidence necessary to substantiate a disability rating or effective date should service connection be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, on remand the notice indicated above should also include such information. Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO/AMC must review the veteran's claims file, and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to whether new and material evidence has been submitted sufficient to reopen the veteran's previously denied claims for service connection for schizophrenia and PTSD. The notice should also address what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denials, as outlined by the Court in Kent, 20 Vet. App. 1. The notice should also inform the veteran that a disability rating and effective date will be assigned if service connection is awarded, to include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Following completion of the above, the RO should review the evidence and determine whether the veteran's claims may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, to include the relevant law and regulations concerning new and material evidence, and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ K. A. BANFIELD 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).