Citation Nr: 1335064 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-31 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim seeking service connection for bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah VanderWood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1957 to September 1959. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, with regard to matters involving a request to reopen a previously denied claim for service connection based on the receipt of new and material evidence, VA must notify the claimant of the evidence and information that is necessary to reopen the claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA must first review the bases for the prior denial of record and then issue a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular types of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. See Kent, 20 Vet. App. at 9-10. The Veteran's 1963 claim for service connection was denied due to a lack of evidence of a nexus between his in-service injury and current diagnosis. In 2009, his attempt to reopen the claim was denied due to lack of new and material evidence. The RO's notice to the Veteran was insufficient under Kent because it informed him that, to substantiate his claim, he would need to provide evidence of a current diagnosis. However, he is seeking to reopen a claim that was denied because of a lack of evidence of a nexus between an in-service injury and a current diagnosis. Thus, new and material evidence sufficient to reopen the claim would have to relate to that nexus, not to a current diagnosis. 38 C.F.R. § 3.156(a). Also, the Veteran submitted additional evidence in December 2012, after his supplemental statement of the case was issued but before his case was certified to the Board. The RO did not readjudicate the claim after receiving this evidence, and the Veteran did not waive RO consideration, so the claim must be remanded and reconsidered by the RO. 38 C.F.R. § 19.37 (2013). Therefore, the case must be remanded for the issuance of proper notice and a readjudication of the claim once all pertinent evidence is received. Accordingly, the case is remanded for the following action: 1. The RO must send the Veteran the required statutory and regulatory notice informing him of the evidence he needs to submit in order to reopen his previously denied claim for service connection. Specifically, this notice must tell the Veteran that his claim was previously denied because he did not provide evidence of a nexus between his in-service injury and his diagnosed bronchitis, and that he must submit evidence relating to this nexus in order to reopen his claim. 2. If the Veteran indicates that relevant records exist that are not yet associated with the claims file, the RO must attempt to procure copies of all such records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform him that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. After the RO has issued proper notice and received all pertinent evidence from the Veteran, the RO must readjudicate the claim. In doing so, the RO must consider the evidence submitted in December 2012, as it was received after the most recent supplemental statement of the case was issued. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have 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, he may present additional evidence or argument while the case is in remand status at the RO. 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) (2013).