BVA Case 07-3547: Back

Palmer appeals through counsel an October 30,2007,Board of Veterans'Appeals (Board)decision in which the Board determined that a June 6,2000,Board decision had subsumed a July 9, 1976 VA regional office decision that denied entitlement to VA benefits for a low back strain.

Because the Board's determination that the June 2000 Board decision had subsumed the July 1976 regional office decision was clearly erroneous,and because the Board relied on an inadequate medical examination to deny entitlement to benefits for hearing loss and tinnitus,the Court will vacate those portions of the October 2007 Board decision and remand the matters for further development,as necessary,and readjudication consistent with this decision.

Because the error in the Board's determination that VA had satisfied its duty to notify is nonprejudicial,the Board's determination that VA had satisfied its duty to assist with respect to Mr.

Palmer's claim for benefits for diabetes mellitus is not clearly erroneous,and the Board's decision to deny entitlement to benefits for diabetes mellitus is supported by adequate reasons or bases,the remainder of the Board's October 2007 decision will be affirmed.

On appeal of a subsequent claim to reopen the 1976 claim in December 1994, the Board determined that no new and material evidence had been submitted to reopen the claim.

Several other attempts to reopen the claim were made,and in June 2000,the Board determined that new and material evidence had been submitted.

1 The law in effect in June 2000 provided that claims must be well grounded in order to invoke VA's duty to assist in their development and proceed to adjudication.

Duties to Notify and Assist The Board determined that VA had met its duty to notify through correspondence in March 2002,July 2002,May 2003,September 2004 ([clear and unmistakable error]), and May 2007;rating decisions in March 2003 and March 2005;[and]a [S]tatement of the [C]ase in August 2003 and September 2005.