Citation Nr: 1010752	
Decision Date: 03/22/10    Archive Date: 03/31/10

DOCKET NO.  03-25 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen the claim of service connection for a chronic sinus 
disorder.  

2.  Whether new and material evidence has been received to 
reopen the claim of service connection for arthritis of the 
knees and ankles.  


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

The Veteran had active service from October 1973 to October 
1976.  

In a December 2008 decision, the Board, among other things, 
denied the Veteran's appeal of the claims to reopen service 
connection for degenerative arthritis of the knees and 
ankles, and a chronic sinus disorder, and he appealed that 
decision to the United States Court of Appeals for Veterans 
Claims (Court).  Pursuant to the terms of a joint motion 
submitted by the Secretary of VA and the Veteran's attorney, 
the Court vacated the Board's decision and remanded the 
matter for compliance with the terms of the joint motion.  

The appeal is REMANDED to the Department of Veterans Affairs 
Regional Office.  VA will notify the Veteran if further 
action is required.  


REMAND

As a result of the Order of the Court, the Board has been 
directed to undertake action consistent with the joint motion 
for Remand.  In the joint motion, it was asserted, in part, 
that VA failed to advise the Veteran of the "requisite 
information" needed to reopen his claims under the holding 
in Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).  
Specifically, that VA failed to inform the Veteran as to the 
basis for the initial denial of his claims and of the type of 
evidence necessary to reopen his claims.  

The question of what constitutes material evidence to reopen 
a claim for service connection depends on the basis on which 
the prior claim was denied.  VA must consider the bases for 
the prior denial and notify the claimant of the type of 
evidence that would be necessary to substantiate the elements 
required to establish service connection that were found 
insufficient in the previous denial.  The failure to provide 
notice of what constitutes material evidence would generally 
be the type of error that has the natural effect of producing 
prejudice because it would constitute a failure to provide a 
claimant notice of a key element of what it takes to 
substantiate a claim to reopen.  

In light of the discussion above, and to ensure full 
compliance with due process requirements, it is the decision 
of the Board that further development is necessary prior to 
appellate review.  Accordingly, the claim is REMANDED to the 
RO for the following action:  

1.  The Veteran should be provided notice 
as required under 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b) that includes an 
explanation as to the information or 
evidence needed to reopen his claims of 
service connection for degenerative 
arthritis of the knees and ankles, and a 
chronic sinus disorder.  The notice 
should include specific information as to 
why the claims were denied previously, 
and of what constitutes new and material 
evidence for the purpose of reopening the 
claims.  See Kent v. Nicholson, 20 Vet. 
App. 1 (2006).  

2.  After the requested development has 
been completed, the claims should be 
readjudicated.  If the benefits sought on 
appeal remain denied, the Veteran and his 
attorney should be furnished a 
Supplemental Statement of the Case and 
given the opportunity to respond thereto.  

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further appellate 
consideration, if in order.  The Board intimates no opinion 
as to the ultimate outcome of this case.  The Veteran need 
take no action unless otherwise notified.  The Veteran 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. 2009).  




____________________________________________
MICHAEL KILCOYNE
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).