Citation Nr: 1328256 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-04 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had active military service from February 1957 to March 1958. He also reports having National Guard service from 1959 to 1962, but this remains unconfirmed. This case comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied a petition to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder. The case was remanded in June 2013. 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 This is a claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder. Under the law if a claim of entitlement to service connection has been previously denied and that decision is final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. In determining what evidence to review, pertinent case law holds that VA must review all the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). As noted in the June 2013 remand, the record in this case reveals that service connection for an acquired psychiatric disorder was originally denied in a March 1978 rating decision. The Veteran did not appeal; hence, that rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). Thereafter, in an October 1988 rating decision the claim was denied on the merits, and in a November 1996 rating decision the claim was denied based on a finding that the appellant had failed to submit new and material evidence. In the absence of a timely perfected appeal, those rating decisions are also final. Id. The record further reveals that in September 1999 and May 2007, the Board denied claims to reopen finding that the appellant had failed to submit new and material evidence. In the absence of a timely appeal to the United States Court of Appeals for Veterans Claims those decisions are also final. 38 U.S.C.A. § 7104 (West 2002). Under 38 U.S.C.A. § 5103(a) (West 2002), VA is required to notify the appellant and his representative of any information and evidence not previously provided to the Secretary of VA that is needed to substantiate the claim. With respect to a claim to reopen, the United States Court of Appeals for Veterans Claims in Kent v. Nicholson, 20 Vet. App. 1 (2006), addressed the notice requirements specific to new and material claims, and held that the Veteran must be apprised as to the requirements both of the underlying service connection claim, as well as the definitions of new and material evidence. Kent further requires that the notice inform the Veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. Here, notice letters were provided to the appellant in June 2009 and July 2013. Neither letter is adequate, however, because both referred to the last final denial as occurring in 1978. The 1978 rating decision is not the last final decision. Rather, as is evident from the foregoing description, the last final decision is the Board's May 2007 decision. The reference to the 1978 decision in both the June 2009 and July 2013 letters was clearly erroneous in light of the procedural history outlined above. Given that only the evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record, Evans v. Brown, 9 Vet. App. 273 (1996), and given that the June 2009 and July 2013 notice letters were inaccurate in referring to the last final decision being in 1978, further development remains required. Accordingly, the case is REMANDED for the following action: Provide the Veteran with an appropriate notice letter under the Veterans Claims Assistance Act of 2000 which discusses what would constitute new and material evidence SINCE THE MAY 2007 BOARD DECISION. Thereafter, the appellant must be provided a reasonable period of time within which to respond. If the claim remains denied a supplemental statement of the case must be issued and the case returned to the Board in accordance with all appropriate due process procedures. 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 particularly includes medical opinion evidence linking a current acquired psychiatric disorder to his military service. 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). _________________________________________________ DEREK R. BROWN 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).