Citation Nr: 1325397 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-45 228 ) 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 dental/mouth/jaw condition. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to February 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the New York, New York Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has been awarded (in a February 1985 rating decision) service connection for VA outpatient dental treatment purposes for teeth numbered 8, 9, and 10. Service connection for a dental/mouth/jaw condition (other than teeth 8, 9, and 10 already service connected for VA outpatient dental treatment purposes) and for a headache disorder were previously denied in a February 1999 rating decision. The question of whether new and material evidence has been received to reopen the Veteran's claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The Board also notes that the Veteran had initiated an appeal regarding whether new and material evidence had been received to reopen claims of entitlement to service connection for a bilateral foot disability and for frostbite of the feet, adjudicated in a December 2008 rating decision. In his November 2009, he limited his appeal to the matters at hand. Hence, the claims for service connection for a bilateral foot disability and for frostbite of the feet are not before the Board. 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 In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held, inter alia, that VA must not only notify the Veteran of the information and evidence necessary to substantiate the underlying claim for service connection, but must also adequately inform him of the basis for the prior denial of his claim. In this case, the Veteran was provided with notice in September 2008, informing him that "the additional existing evidence must pertain to the reason your claim was previously denied", which thereby did not advise him of the basis for the prior final denial of his claim. Therefore, the Veteran has not been provided with adequate 38 U.S.C.A. § 5103(a) notice as interpreted by the Court in Kent. In addition, the record shows that the Veteran is in receipt of benefits from the Social Security Administration (SSA). However, it is unclear whether the benefits he is receiving from SSA are based on age or based on disability. See, e.g., February 2003 VA treatment record noting he was receiving disability due to his headaches; cf. December 2008 VA treatment record noting the Veteran needed a letter for documenting his income. However, such matter should be clarified, and if he is in receipt of SSA disability benefits based on his headaches, such records should be obtained and placed in the paper or virtual claims file. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Finally, the most recent VA treatment records are dated August 2009. Recent VA treatment records dating from August 2009 to the present should be requested on remand. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In light of the above, the Board finds that further development is required prior to adjudication of the claims to reopen. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran a letter that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as to the claims to reopen service connection for a dental/mouth/jaw condition and for a headache disorder. The letter must explain, in the context of a claim to reopen, what evidence is necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial of service connection, and the letter must specifically inform the Veteran of the basis for the prior final denial of both claims. The letter must also specifically inform the Veteran which portion of the evidence is to be provided by the claimant, which part, if any, the RO will attempt to obtain on his behalf, and a request that the Veteran provide any evidence in his possession that pertains to his claims. 2. Obtain copies of relevant VA treatment records dating since August 2009. 3. Ask the Veteran whether he is in receipt of Social Security benefits for disability (rather than age) and if so, whether the benefits are based on his headache disorder and/or dental/mouth/jaw condition. If the Veteran indicates he is receiving Social Security disability benefits due to his headache disorder and/or dental/mouth/jaw condition, or if he is unsure, all relevant administrative and medical records considered in the determination on the claim for SSA disability benefits should be requested from SSA. 4. Then readjudicate the issues on appeal. If the benefits sought on appeal remain denied, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. 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). _________________________________________________ M. N. HYLAND 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).