Citation Nr: 0733293 Decision Date: 10/24/07 Archive Date: 11/02/07 DOCKET NO. 04-25 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received to reopen a claim of whether the veteran's injuries sustained on April 2, 1980 were the result of the veteran's own willful misconduct for the purpose of determining service connection for fracture of cervical vertebra with dislocation and limited motion. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from May 1977 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in February 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 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 May 1984 VA administrative decision determined that injuries sustained by the veteran on April 3, 1980, were as a result of his own willful misconduct and not in line of duty. A May 1984 RO decision denied service connection for fractured cervical vertebra with dislocation manifested by limited range of motion and status post operative because it was due to the veteran's willful misconduct and not in line of duty. The veteran was notified of this decision, and his appellate rights, but he did not appeal and it is now final. The veteran contends that his cervical fracture is the result of an in-service motor vehicle accident caused by a blown front tire and not as a result of his willful misconduct. Therefore, he claims service connection for fracture of cervical vertebra with dislocation and limited motion is warranted. The Board finds that a remand is necessary to accomplish compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). VCAA imposes obligations on VA in terms of its duties to notify and assist claimants. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims held that when the issue is whether new and material evidence has been received to warrant reopening of a claim, VA's duty to notify requires that VA inform the veteran of the specific element or elements of the claim that were not substantiated by the evidence at the time of the prior denial. 20 Vet. App. 1 (2006). In the present case, the veteran was sent VCAA notice letters dated in December 2002 and April 2006 that notified him, generally, as to the evidence required to reopen a claim and to establish service connection. However, neither letter informed the veteran that the specific reason for denial of his original service connection claim was that the evidence indicated that the injuries of the cervical spine he sustained in service were the result of his own willful misconduct and not in line of duty. Therefore, a remand is necessary to provide proper VCAA notice to the veteran in accordance with Kent, supra. Therefore, the case is REMANDED for the following action: 1. The veteran should be sent a VCAA notice letter that includes information as to the basis for denial of his original service connection claim, including that injuries to the cervical spine were as a result of his own willful misconduct and not in line of duty, and the evidence the veteran needs to submit to substantiate the missing element of his claim, in accordance with Kent, supra. 2. After completion of the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the veteran's new and material claim should be readjudicated. If the claim remains denied, the veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ MILO H. HAWLEY 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).