Citation Nr: 1308013 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-44 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for whether injuries sustained as a result of a motorcycle accident in September 1981 were incurred in the line of duty for purposes of entitlement to service connection for a left hip disability. 2. Entitlement to an initial compensable evaluation for status post excision osteochondroma of the left femur. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to July 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision and September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In March 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. 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 Board finds that additional development is necessary before a decision may be rendered with respect to the claims on appeal. The Veteran has not received complete notice in compliance with the VCAA in regards to whether new and material evidence has been received to reopen a claim for whether injuries sustained as a result of a motorcycle accident in September 1981 were incurred in the line of duty. The Veteran's claim was previously denied in a final August 1983 rating decision, but he has not received information regarding the requirements to substantiate his claim to reopen. The Court of Appeals for Veterans Claims (Court) has held that the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran must receive notice that complies with the Court's decision in Kent. A remand is also required to provide the Veteran a statement of the case (SOC) in response to his claim for an initial compensable rating for service-connected osteochondroma of the left femur. In September 2010, the Veteran was awarded service connection for this disability and an initial noncompensable rating was assigned effective February 26, 2010. A notice of disagreement was received regarding the initial noncompensable evaluation in November 2010. As the Veteran has not been provided a SOC in response to the notice of disagreement, a remand is required. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) including notice regarding his claim to reopen whether injuries sustained as a result of a motorcycle accident in September 1981 were incurred in the line of duty for purposes of entitlement to service connection for a left hip disability. The letter should specifically include the reason the Veteran's claim was denied in August 1983 and address the evidence necessary to substantiate the claim. 2. Issue a SOC to the appellant and his representative on the issue of entitlement an initial compensable evaluation for status post excision osteochondroma of the left femur. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 3. If additional evidence is received pertaining to the claim to reopen, readjudicate the claim. Then, ensure that any indicated development is completed before returning the case (including the claim for an increased initial rating, if perfected) to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ MILO H. HAWLEY 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) (2012).