Citation Nr: 0814694	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  02-08 614	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
left knee disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The appellant served on active duty from April 1954 to March 
1957.

This matter came before the Board of Veterans' Appeals (the 
Board) on appeal from a November 2001 rating decision of the 
Houston, Texas, Department of Veterans Affairs (VA) Regional 
Office (RO). 

The veteran testified before the undersigned Veterans Law 
Judge via videoconferencing technology in January 2004.  A 
transcript of his hearing has been associated with the 
record.

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 appeal was remanded in April 2006 to provide the correct 
regulation regarding new and material evidence to the 
veteran.  While the case was in remand status, the Court of 
Appeals for Veterans Claims issued a decision which held 
that, in the context of a claim to reopen, VCAA notice must 
include an explanation of 1) the evidence and information 
necessary to establish entitlement to the underlying claim 
for the benefit sought; and 2) what constitutes new and 
material evidence to reopen the claim as determined by the 
evidence of record at the time of the previous final denial.  
See Kent v. Nicholson, 20 Vet. App. 1 (2006).  The Court 
further explained that a notice letter must describe what 
evidence would be necessary to substantiate the element or 
elements required to establish the underlying claim that were 
found insufficient in the previous denial.  Review of the 
record indicates that the veteran has not been provided 
appropriate notice pursuant to Kent.  

Based on the 1964 rating decision, servicec connection was 
denied left knee injury and weak knees was denied as 
preexisting and not aggravated and not show by the evidence 
of record.  Since that determination, there is at least one 
notation of degenerative joint disease of the knees.

In light of these circumstances, the Board has concluded that 
further development is required.  Accordingly, the case is 
REMANDED for the following action:

1.  Send the appellant a corrective VCAA 
notice under 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b), that describes the 
basis of the RO's January 1964 denial of 
the claim of entitlement to service 
connection for a left knee disability, 
and the evidence necessary to 
substantiate the element or elements of 
the claim.  The notice should also 
describe the bases of the RO's October 
1997 and January 2000 rating decisions 
which declined to reopen the veteran's 
claim.  Any additional evidence pertinent 
to the appellant's claim received by the 
RO should be associated with the claims 
folder.

2.  In light of the notation of 
degenerative joint disease (a presumptive 
disease 38 U.S.C.A. § 1101), the AOJ 
should consider whether the issue should 
be treated as a new claim.  

If upon completion of the above action the claim remains 
denied, the case should be returned after compliance with 
appellate procedure.

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).



_________________________________________________
H. N. SCHWARTZ
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).