Citation Nr: 1317755 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 11-25 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been presented to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss disability, and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to March 1945. This case comes before the Board of Veterans' Appeals on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled for a videoconference hearing in April 2013, in accordance with his request made in his substantive appeal. He failed to report and has provided neither a statement of good cause for his failure nor a request to reschedule the hearing. His representative has not requested that the hearing be rescheduled. The request is considered withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 warranted before it can decide the issue on appeal. Specifically, the Board finds that the Veteran has not been provided proper notice as to the evidence necessary to substantiate his claim. The United States Court of Appeals for Veterans Claims (Court) has held that, in claims to reopen, 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). In response to the Veteran's December 2009 claim to reopen his previously denied claim of service connection for bilateral hearing loss disability, the RO in Roanoke, Virginia, issued a letter to the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). The VCAA, in part, requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. at 9-10. In the January 2010 letter, the Roanoke RO noted that, "You were previously denied service connection for bilateral hearing loss. You were notified of the decision on May 5, 2003. The appeal period for that decision has expired and the decision is now final." The letter also reads, "You have claimed service connection for bilateral hearing loss within 1 year." The Board finds that this letter does not properly inform the Veteran as to his claim and is insufficient to fulfill the duty to the Veteran under the VCAA and in accordance with Kent. While the claim for service connection was denied in April 2003, and he was informed in May 2003, the Veteran appealed that claim and it was denied in a Board decision in November 2006. The Board denied the claim finding that hearing loss did not manifest in service or within one year of separation from service, and is not shown to be causally or etiologically related to the Veteran's service. The Board finds that, under the circumstances, and due to the confusion in the record created by the aforementioned letter, the duty to inform has not been met. Inasmuch as there may be additional VA treatment records available that are relevant to the issue on appeal, an attempt to obtain them must be made. In addition, the record reflects that the Veteran was in receipt of Social Security Administration (SSA) disability benefits. Although it is unclear whether or not those records are still available, VA should attempt to obtain those records as they may be pertinent to the Veteran's claim. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992); see also 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2011); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC or the RO must provide the Veteran with a notification letter that contains the information required by Kent for the issue of whether new and material evidence has been submitted to reopen a previously denied claim for service connection for bilateral hearing loss disability. The letter must address what constitutes new and material evidence to reopen the claim based on the evidence of record at the time of the November 2006 Board decision (the last final denial), as well as the evidence and information necessary substantiate the element or elements required to establish the underlying claims that were found insufficient in the previous denial. 2. The RO or the AMC should obtain any outstanding VA treatment records. 3. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. The RO or the AMC should undertake any other development it determines to be warranted. Then, the RO or the AMC should readjudicate the issue on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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). _________________________________________________ S. S. TOTH 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).