Citation Nr: 1338237	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  10-07 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lung or respiratory disorder.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder to include panic/anxiety disorder.


WITNESSES AT HEARING ON APPEAL

Veteran, C.K., and D.K.


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from March 1950 to November 1953. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). 

In July 2013 the Veteran appeared at a Travel Board hearing before the undersigned.  A transcript of that hearing is of record.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

The most recent final denial of the Veteran's claim of entitlement to service connection for a psychiatric disorder was a Board decision dated in August 2001.  

The most recent final denial of his claim of entitlement to service connection for a lung or respiratory disability was a Board decision dated in May 2004.  

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 May 2008 which did not inform him that the claim for service connection for a psychiatric disorder had been previously denied.  While the letter did inform the Veteran that his claim for service connection for a lung disorder had been previously denied, it incorrectly stated that the final denial of record was a February 2003 rating decision rather than the May 2004 Board decision.  Further, the letter did not inform him of the basis of the previous denial of the lung 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. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  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 psychiatric disorder (the subject of a Board decision dated in August 2001) and service connection for a lung or respiratory disability (the subject of a Board decision dated in May 2004).  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 denials of service connection, and the letter must specifically inform the Veteran of the basis for the prior final denials 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.  Then readjudicate the issues on appeal.  If a benefit sought on appeal remains denied, issue the Veteran a supplemental statement of the case and provide him 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).