Citation Nr: 1017252	
Decision Date: 05/10/10    Archive Date: 05/26/10

DOCKET NO.  04-07 331	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri


THE ISSUE

Whether new and material evidence has been received to reopen 
a claim for entitlement to service connection for bilateral 
pes planus.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1968 to July 
1969. 

This case was previously before the Board of Veteran's 
Appeals (Board) on appeal from a March 2003 rating decision 
of the RO in St. Louis, Missouri.  The Veteran's claim was 
denied in an October 2006 Board decision.  The Veteran 
appealed this decision to the United States Court of Appeals 
for Veterans Claims (Court).  In a January 2009 Memorandum 
Decision, the Court vacated the October 2006 Board decision 
and remanded the case to the Board for readjudication 
consistent with this decision.  

In June 2009, the Board remanded this case to the RO, 
instructing it to send the Veteran a notice letter complying 
with the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), 
which held that under the Veterans Claims Assistance Act of 
2000 (VCAA), the Veteran is entitled to notice regarding the 
elements of new and material evidence and the reasons for the 
prior final denial.  The RO was to then readjudicate the 
Veteran's petition to reopen his claim and, if it was denied, 
issue a supplemental statement of the case (SSOC) and return 
the case to the Board for review.  The Board further 
instructed the RO that if it declined to reopen the Veteran's 
claim, the RO should discuss why the Veteran's testimony at a 
July 2004 hearing at the RO regarding continuity of 
symptomatology did not constitute new and material evidence.  

Pursuant to these remand instructions, the RO sent the 
Veteran a September 2009 letter that fully complied with all 
notice requirements under the VCAA, including the notice 
requirements for petitions to reopen set forth in Kent.  The 
RO then readjudicated the Veteran's claim, declined to reopen 
it, and issued a February 2010 SSOC which discussed, among 
other things, why the Veteran's testimony at the July 2004 RO 
hearing did not constitute new and material evidence.  
Accordingly, the Board finds that the RO complied with all of 
the Board's remand directives.  See Stegal v. West, 11 Vet. 
App. 268 (1998) (holding that a remand by the Board confers 
upon the Veteran, as a matter of law, the right to compliance 
with the remand instructions, and imposes upon VA a 
concomitant duty to insure compliance with the terms of the 
remand).  

The Veteran testified at a July 2004 hearing at the RO.  A 
transcript of the hearing has been associated with the file.

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 Veteran petitions to reopen his claim of entitlement to 
service connection for bilateral pes planus.  The Board finds 
that this claim must be remanded to ensure that all due 
process requirements have been satisfied. 

In a February 2010 VA Form 9, the Veteran requested a hearing 
before the Board to be held at a local VA office.  See 
38 C.F.R. §§ 20.700, 20.703 (2009).  Therefore, the agency of 
original jurisdiction (AOJ) should schedule the Veteran for a 
hearing before the Board, notifying him of his options for a 
Travel Board or videoconference hearing and providing notice 
of the scheduled hearing date in accordance with 38 C.F.R. 
§ 20.704(b) (2009).  

Accordingly, the case is REMANDED for the following actions:

1.  The AOJ should send the Veteran a 
letter notifying him of his options for a 
hearing before the Board at his local VA 
office.  The AOJ should then schedule the 
Veteran for a Board hearing and provide 
proper notice of the hearing date.  

2.  After the hearing is conducted, the 
case should be returned to the Board for 
further review.  If the Veteran withdraws 
his hearing request or fails to report for 
the scheduled hearing, the case should be 
returned to the Board.

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. 2009).



_________________________________________________
K. PARAKKAL
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).