Citation Nr: 1318093	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  12-20 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether new and material evidence has been submitted to reopen the claim for service connection for right ear disorder (to include right ear hearing loss).  


ATTORNEY FOR THE BOARD

G. Jivens-McRae, Counsel










INTRODUCTION


The Veteran had service in the Philippine Scouts from August 1946 to May 1949.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for right ear hearing loss.  

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

A review of the record reveals that the issue of service connection for right ear hearing loss has been previously denied.  Service connection for a right ear disorder (to include right ear hearing loss) was most recently denied in July 1973.  Notice of the denial was provided in a letter that same month.  The Veteran did not file a notice of disagreement (NOD) with the denial within one year of the denial, and therefore, the claim became final.  

In claims to reopen, according to VA's duty to notify and assist, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.  

Since the RO characterized the claim as a service connection claim rather than a claim to reopen, the Veteran was not provided the laws and regulations for new and material evidence, nor was the duty to assist and notify Kent compliant, as he was not provided with information and evidence necessary to reopen the claim and notify the Veteran of the evidence necessary to establish service connection.  Simply put, it is not clear to the Veteran what evidence would be needed to substantiate those elements for service connection that were found insufficient in the previous denial.  As such, proper notice should be provided to the Veteran.  

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 RO/AMC must ensure that it has complied with the ruling in Kent v. Nicholson, 20 Vet.App. 1 (2006),with regard to advising the claimant of what evidence would substantiate his application to reopen his claim of service connection for right ear disorder (to include right ear hearing loss).  Specifically, the RO/AMC must indicate what evidence would substantiate his application to reopen the claim, and based on the reason for the denial in July 1973, this would be in-service evidence of a hearing disorder or evidence that the Veteran's current hearing disability is otherwise related to active service.  

2.  Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by VA.  

3.  Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated.  Then readjudicate the claim on appeal.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  


The Veteran 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. 2012).




_________________________________________________
Michael J. Skaltsounis 
Acting 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).