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).