Citation Nr: 1325935 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-27 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of pneumonia. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of a left leg injury. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served in the U.S. Army Reserves from December 1976 to June 1977, with five months of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut. This appeal is remanded to the RO via Appeals Management Center in Washington, DC. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. Both claims were initially denied in a rating decision dated in February 1978 but the Veteran did not perfect an appeal of either issue. In an August 2004 rating decision, the RO denied the Veteran's request to reopen both claims. The Veteran perfected an appeal of the August 2004 decision. In June 2009, the Board reopened the claims, but denied both claims on the merits. The Veteran is currently seeking to reopen both claims. With respect to requests to reopen previously denied claims, a claimant must be notified of both the criteria to reopen a claim for service connection, to include a discussion of the bases for the prior denial, as well as the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this appeal, the Veteran was provided notice of the general requirements for reopening the previously denied claims in a February 2011 notice letter. However, in the February 2011 letter, the RO erroneously referred to the August 2004 RO decision when it described the reasons for the prior denials when, in fact, the June 2009 Board decision was the last final denial of both claims. See 38 C.F.R. §20.1100 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012). As the Veteran was thus misinformed as to the evidence needed to reopen the claims, the statutory and regulatory notice is inadequate. Consequently, the Board finds that a remand is warranted in order for the RO to provide the Veteran adequate notice. Accordingly, the case is remanded for the following action: 1. The RO must provide notice to the Veteran that meets the requirements set out in Kent v. Nicholson, 20 Vet. App. 1 (2006), including notice of the evidence and information that is necessary to reopen the claims and notice to the Veteran of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefits that are being sought. The RO must notify the Veteran of the specific bases for the Board's June 2009 denial of both claims and provide him with notice of what evidence would be necessary to substantiate the elements of service connection that were then found to be insufficient. 2. After completing the above action, and any additional development deemed necessary, the RO must readjudicate the Veteran's claims on appeal. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).