Citation Nr: 1322143 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-18 766A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of service connection for lower back pain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from June 2002 to June 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO), which reopened the Veteran's claim for service connection for lower back pain, previously denied in a July 2007 rating decision, and denied the claim on the merits. Notwithstanding the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection for lower back pain. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As the Board must first decide whether new and material evidence to reopen the claim for service connection for lower back pain has been received before it can address this matter on the merits-and in light of the favorable action to remand the claim-the issue of whether to reopen the claim for service connection for lower back pain and adjudication of the claim on the merits is still pending. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include an informal hearing presentation submitted by the Veteran's representative. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). In the context of a claim to reopen, the VCAA also requires the Secretary to examine the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The veteran must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided notice of the VCAA in November 2007, December 2007 and March 2008; however, none of the VCAA letters notified him of the Kent requirements. See id. As is explained above, the RO's finding that new and material evidence has been received does not bind the Board, which must review the issue separately. The notice requirements of Kent have not been satisfied and therefore it is prejudicial to proceed on adjudicating the merits of the claim for whether new and material evidence has been received to reopen previously denied claim for service connection for lower back pain. Therefore, a remand is appropriate for a new VCAA notice to be sent to the Veteran at his current address with the appropriate notice consistent with Kent. See Kent, 20 Vet. App. 1. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the claims. The letter should indicate which portion of the evidence, if any, is to be provided by the Veteran and which portion, if any, VA will attempt to obtain on his behalf. The letter should also request that the Veteran provide any evidence in his possession that pertains to the claims. In addition, the letter MUST DESCRIBE the basis of the previous denial of the Veteran's claim for service connection for lower back pain in the July 2007 rating decision, as well as the evidence necessary to substantiate the element or elements of service connection found to be unsubstantiated in the previous denial. The letter should also notify the Veteran of what constitutes both "new" and "material" evidence to reopen the previously denied claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. Readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant 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). _________________________________________________ Vito A. Clementi 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).