Citation Nr: 1002011	
Decision Date: 01/12/10    Archive Date: 01/22/10

DOCKET NO.  06-07 056A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California



THE ISSUE

Whether new and material evidence has been received to reopen 
a claim of service connection for peptic ulcer disease.



REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs (CDVA)



ATTORNEY FOR THE BOARD

A. Ishizawar, Associate Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from 
October 1951 to August 1954.  This matter is before the Board 
of Veterans' Appeals (Board) on appeal from an April 2004 
decisional letter of the Los Angeles, California Department 
of Veterans Affairs (VA) Regional Office (RO).  In December 
2007, this matter was remanded to satisfy notice 
requirements.  

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if any action on his part is required.


REMAND

In the December 2007 remand, the Board requested that the RO 
provide the Veteran the notice required in claims to reopen 
in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006), 
which held that the Veterans Claims Assistance Act of 2000 
(VCAA) notice requirements of 38 U.S.C.A. § 5103(a) require 
that a claimant be notified of the meaning of new and 
material evidence and of what evidence and information (1) is 
necessary to reopen the claim; (2) is necessary to 
substantiate each element of the underlying service 
connection claim; and (3) is specifically required to 
substantiate the element or elements needed for service 
connection that were found insufficient in the prior final 
denial on the merits.  The Board specifically noted that 
although the Veteran was notified in August 2003 regarding 
the evidence necessary to reopen his claim of service 
connection for peptic ulcer disease and the evidence 
necessary to substantiate the underlying claim of service 
connection, he was not advised of the basis for the previous 
denial, in June 1958.  

The Veteran was sent a new VCAA notice letter in February 
2008.  A close review of this letter finds that it did not 
advise the Veteran of the basis for the previous denial in 
June 1958, nor is there any other communication to the 
Veteran from the RO providing the specific notice requested.  
A remand by the Board confers on the appellant, as a matter 
of law, the right to compliance with the remand orders.  
Stegall v. West, 11 Vet. App. 268, 271 (1998).  While the 
Board regrets continued delay in this case, it has no 
recourse but to once again remand the case to the RO for 
compliance with remand instructions.  Significantly, 
statements by the Veteran and the evidence he submitted in 
response to the February 2008 VCAA notice letter suggest he, 
in fact, does not understand why he was previously denied; 
therefore, the Board finds that he continues to be prejudiced 
by not being provided with Kent- compliant notice.

The Board also notes that the Veteran's representative has 
requested that the Veteran's claims file be forwarded to the 
Los Angeles RO so that CDVA may review the file and prepare 
an updated VA Form 646, Statement of Accredited 
Representative in Appealed Case.  See November 2009 letter 
from CDVA.  This remand provides opportunity for the request 
to be honored.

Accordingly, the case is REMANDED for the following:

1. 	The RO must (as the Board's 
previous remand instructed) provide the 
Veteran the notice required in claims to 
reopen in accordance with Kent v. 
Nicholson, 20 Vet. App. 1 (2006); he must 
specifically be advised of the basis for 
the previous denial of his claim.  He 
should have ample opportunity to respond; 
if any further development is indicated 
(based on his response(s)), the RO should 
arrange for such development.

2. 	The RO should then re-adjudicate 
the claim.  If it remains denied, the RO 
should issue an appropriate supplemental 
statement of the case and afford the 
Veteran and his representative the 
opportunity to respond.  This includes 
forwarding the claims file to CDVA to 
afford them the opportunity to review the 
record and submit an updated VA Form 646 
on the Veteran's behalf.  Thereafter, the 
case should be returned to the Board, if 
in order, for further review.
The appellant has the right to submit additional evidence and 
argument on the matter 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 for additional 
development or other appropriate action must be handled in an 
expeditious manner.


_________________________________________________
George R. Senyk
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) (2009).