Citation Nr: 1019486 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 08-13 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been presented to reopen the claim of service connection for residuals of a fractured cervical spine with paralysis secondary to service- connected lumbosacral strain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Motrya Mac, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1981 to June 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in February 2008, of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND In a decision in July 1999, the Board denied secondary service connection for residuals of a fractured cervical spine with paralysis, sustained in a vehicle accident in September1990 after service, based on findings that there was no relationship between the service-connected lumbosacral strain and residuals of a fractured cervical spine or of any increase in disability associated with residuals of a fractured cervical spine and the service-connected lumbosacral strain. By operation of law, the Board decision in July 1999 is final. 38 U.S.C.A. § 7104. In December 2007, the Veteran applied for VA disability compensation, referring to paralysis sustained in an injury in a vehicle accident in September 1990. The RO adjudicated the claim as a new claim of service connection. Where service connection for a disability has been denied by the Board, a subsequent claim of service connection for the same disability may be considered on the merits only if new and material evidence has been received since the time of the prior final decision. 38 U.S.C.A. § 5108. The Board determines that the claimed disability raised by the Veteran in December 2007 is the same disability the Board previously denied in its decision in July 1999. For this reason, the Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined is not binding. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board addresses a question that has not been addressed by the RO, in this case, whether the additional evidence is new and material, the Board must consider whether the Veteran has been adequate notice of the need to submit evidence and argument on the question and, if not, whether the Veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Under the Veterans Claims Assistance Act of 2000 (VCAA), implemented in part at 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. In a new and material evidence claim, the notice must include notice of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought, and the basis for the prior denial of the claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, as the Veteran was not provided adequate VCAA notice in accordance with Kent, the case is REMANDED for the following action: 1. Ensure VCAA compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), pertaining to the basis for the prior denial of the claim of service connection for residuals of a fractured cervical spine with paralysis secondary to service-connected lumbosacral strain. As for the basis for the previous denial, the VCAA notice should include the following: In its decision of July 1999, the Board denied service connection for residuals of a fractured cervical spine with paralysis secondary to service-connected lumbosacral strain because the claimed disability was not caused by or aggravated by service-connected lumbosacral strain. The VCAA notice must include the type of evidence needed to substantiate the underlying claim of service connection on a secondary basis, that is, evidence that the service-connected lumbosacral strain caused or aggravated the residuals of a fracture of the cervical spine with paralysis. 2. After the development has been completed, adjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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 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). _________________________________________________ George E. Guido Jr. 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). Department of Veterans Affairs