Citation Nr: 1101255 Decision Date: 01/11/11 Archive Date: 01/20/11 DOCKET NO. 05-04 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a hematoma of the left tibia. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a groin disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's application to reopen his claims for service connection for back, hematoma of the left tibia, groin, and psychiatric disabilities. In September 2008, the Board remanded the case for the purpose of scheduling the Veteran for a travel board hearing. In correspondence received from the Veteran in November 2008, the Veteran withdrew his request for a hearing before the Board. He has not subsequently submitted a new request for a Board hearing. Thus, his request to testify at a Board hearing has been withdrawn. See 38 C.F.R. § 20.704 (2010). 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 Additional development is needed prior to further disposition of the claims. The Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and disabilities of the back and groin were previously denied in a June 2000 Board decision. The claim of entitlement to service connection for a hematoma of the left tibia was previously denied in a September 2002 Board decision. In the July 2004 rating decision on appeal, the RO declined to reopen the claims. While the RO determined that the claims could not be reopened, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). In this regard, The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The decision of the United States Court of Appeals for Veterans Claims in Kent v. Nicholson requires that the Secretary look at the bases for the prior denial and notify the veteran as to what evidence is necessary to substantiate the element or elements required to establish service connection that were found insufficient at the time of the previous denial. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis upon which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Veteran has not yet been notified as to the specific evidence necessary to reopen his claims. On remand, he should be so notified. Additionally, in written correspondence the Veteran indicated that VA clinical records from the Northport and Brooklyn, New York, Medical Centers contained evidence that would support his application to reopen his claims. A review of the claims file demonstrates that records from these facilities dated from January 2003 to March 2005 have been associated with the file. However, records dated from June 2000 to January 2003, and since March 2005 have not yet been associated with the file. Because the Veteran has indicated that he has continued to receive regular treatment for his back, psychiatric, groin, and hematoma disabilities, the Board finds that there are additional VA treatment records pertinent to these claims that are outstanding and should be obtained. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran and his representative a corrective notice under 38 U.S.C.A. § 5103(a) that: (1) notifies the Veteran of the evidence and information necessary to reopen the claims for service connection for back, groin, hematoma of the left tibia, and psychiatric disabilities, (i.e., describes what new and material evidence is); and (2) notifies the Veteran of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits (i.e., opinions relating his disabilities to his period of active service, or opinions finding that his disabilities were aggravated by his service). 2. Obtain and associate with the claims file records from the Northport and Brooklyn, New York, VA Medical Centers dated from June 2000 to January 2003, and from March 2005 to the present. If the records have been retired to a storage facility, obtain the records from the appropriate storage facility. All attempts to secure the records must be documented in the claims folder. 3. Then, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. 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). _________________________________________________ Laura H. Eskenazi 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) (2010).