Citation Nr: 0719459 Decision Date: 06/28/07 Archive Date: 07/05/07 DOCKET NO. 04-14 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for lumbar laminectomy L3-4 and L4-5 with residual chronic low back pain syndrome and radiculopathy (claimed as chronic back pain, legs/nerves and previously claimed as low back condition). REPRESENTATION Appellant represented by: The American Legion LAW CLERK FOR THE BOARD C. Auringer, Law Clerk INTRODUCTION The veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefit currently sought on appeal. 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 A review of the record reveals that the veteran's claim for service connection for a low back disorder was originally denied by an April 1981 rating decision. The RO reopened the claim by rating decision in May 2003. Nevertheless, regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. Accordingly, the issue has been restylized as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection. The veteran has not received sufficient notice under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006) with respect to reopening his claim for service connection. In February 2003 the AOJ attempted to provide the veteran with notice of the evidence required to substantiate a claim for service connection. This notice was insufficient as it failed to notify the veteran of the nexus requirement for service connection (evidence establishing a relationship between a current disability and an injury, disease, or event in service). See 38 C.F.R. § 3.303 (2006). This notice also did not include the rating criteria by which a disability granted service connection will be evaluated and how the effective date of that grant will be assigned. In May 2003, the AOJ attempted to provide the veteran with notice of what is required to reopen a previously denied claim. While this notice did inform the veteran of the standard for new and material evidence under 38 C.F.R. § 3.156(a) (2006), it failed to provide a description of what evidence would be necessary to substantiate the element or elements that were found insufficient in the previous denial (i.e., a medical nexus opinion). See Kent v. Nicholson, 20 Vet. App. 1, 9 (2006). The veteran should be given appropriate notice at this time, and the opportunity to submit evidence in support of his claim. Accordingly, the case is REMANDED for the following action: 1. Notify the veteran of the information and evidence necessary to reopen a previously denied claim (i.e., the standard for new and material evidence), and particular evidence necessary to substantiate his claim for service connection (i.e., a medical nexus opinion). This notice should include the rating criteria by which a disability granted service connection will be evaluated and how the effective date of that grant will be assigned. The veteran should also be notified of information and evidence that VA would seek to provide and information and evidence that he is expected to provide. The veteran should be asked to "provide any evidence in his possession that pertains to the claim." 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter 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. 2006). _________________________________________________ J. E. Day 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) (2006).